S.S. Nijjar, J.
1. The petitioner claims to have been appointed as Helper by M/s Escorts Ltd. Tractor Division, Plot No. 2 Sector 13, Faridabad (hereinafter referred to as respondent No. 2) on 26.6.1992. On 8.12.1994, the petitioner met with an accident during the lunch break. His right leg was fractured. He was admitted in the ESI Hospital and remained on medical leave till 4.9.1995. When he was given the fitness certificate by the ESI Hospital, on 5.9.1995, he was again engaged till 30.9.1995. However, his services were terminated on 27.9.1995 without complying with the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). It is the claim of the petitioner that he has completed more than 240 days of service in the calender year immediately preceding the date on which his services were illegally terminated. He, therefore served a demand notice under Section 2-A of the Act on respondent No. 2 seeking his reinstatement with full back wages. In this demand notice, the petitioner has pleaded that he had met with an accident on 8.12.1994 due to the negligence of the officials of the management and remained admitted till 3.9.1995. His services were illegally terminated on 27.9.1995 while workers junior to him have been retained in service. The Haryana Government referred the dispute to the Industrial Tribunal-cum-Labour Court, Faridabad (hereinafter referred to as 'the Labour Court') which is as under;-
'Whether termination of the service of Hukam Chand is justified and in order. Ifnot, to what relief he is entitled to ?'
2. In the statement of claim, the petitioner reiterated his claim. Respondent No. 2 in the written statement submitted that the petitioner was a casual workman employed occasionally depending on the requirements. He was employed for the first time on 27.6.1992 and worked for ten days upto 7.7.1992. The engagement on daily wages was extended upto 31.7.1992. Thereafter his casual employment was extended or he was re-appointed from time to time. The employment was not continuous. There was no employment for a long period as it actually depended on the requirements of respondent No. 2. At the time of each appointment/extension, the petitioner was issued an Employee Check List. This Check List clearly mentions the nature of appointment, period of employment, rate of wages and the department in which the employee is to work. These check lists were accepted by the petitioner from time to time. Respondent No. 2 denied that the rate of wages paid to the petitioner was Rs. 1725.00 p.m. The rate varied from time to time. Respondent No. 2 also denied that petitioner has suffered the injury due to the negligence of the Management. It is further stated that in the period of 12 months preceding 30.9.1995, the workman only worked for 40 and half days. Therefore, it is denied that he had worked for 240 days. The workman filed replication and reiterated the stand. On the pleadings of the parties, the Labour Court framed the following is-sues;-
'1. Whether the claimant does not fall under the definition of workman?
2. Whether there is no Industrial dispute?
3. As per reference ?'
3. Issues No. 1 and 2 were decided in favour of the workman as they were not pressed by the representative of the Management
4. On issue No. 3 the Labour Court has noticed that the workman was ill from 8.12.1994 to 3.9.1995. Thereafter, he worked for 17 and half days from 10.9.1995 till 27.9.1995. After considering the entire evidence, the Labour Court has come to the conclusion that the accident as a result of which the workman had suffered the injuries, occurred during lunch hour. Therefore, it has been held that the accident did not occur due to the negligence of the Management. It has also been held by the Labour Court that the workman had been discharged on the expiry of the specific period of temporary employment and therefore, did not amount to retrenchment. The Labour Court also held that the workman had only worked for 40 and half days in the preceding calendar year. The Labour Court did not give the benefit of the period of treatment on account of injury in the ESI Hospital from 8.12.1994 till 4.9.1995 for calculating the period of 240 days under Section 25-B of the Act. Issue No. 3 was, therefore, decided against the workman and in favour of the management and no relief was granted. The petitioner has therefore, filed the present writ petition under Articles 226/227 of the Constitution of India seeking the issuance of a writ in the nature of certiorari quashing the award dated 29.3.2001 of the Industrial Tribunal-cum-Labour Court with consequential relief of reinstatement with full back wages.
5. Ii has been submitted by Ms. Rathore that it was for the Management to prove that the workman had been appointed on contract basis. This could have been proved only by proving the terms and conditions of the appointment. Mere production of the Check Lists would not be sufficient to discharge the liability. In support of her submission, learned counsel has relied on the following judgments:-
1. Bikku Ram v. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak, 1998(1) R.S.J. 703.
2. Alumina Mazdoor Sangh etc. v. Ratna Construction Co., 2003(2) S.C.T. 32.
3. S.M. Nilajkar and Ors. v. Telecom, Distt. Manager, Karnataka, 2003(2) S.C.T. 1013.
4. Kulwinder Kaur v. Presiding Officer, Labour Court, 2002(2) S.C.T. 458.
6. Learned counsel for the respondent No. 2 has submitted that the period spent in ESI, Hospital cannot be added to the working days for the purpose of calculating the number of days as required under Section 25-B of the Act. He further submitted that the petitioner having been appointed for a fixed period was not entitled to the benefit of the provisions of the Act. In support of the submissions, the learned counsel has relied on the following judgmnets:-
1. Buckingham and Carnatic Company Ltd. v. Venkatayya and Anr., 1963 II L.L.J. 638;
2. Escorts Limited v. Presiding Officer and Anr., 1997 L.L.R. 699;
3. Birla VXL Ltd. v. State of Punjab and Ors., 1998 L.L.R. 1167;
4. Om Parkash v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat and Anr., 1999 L.L.R. 379;
5. Moti Singh v. The Factory Manager, CIMMCO Ltd. Bharatpur and Anr., 1989(58) F.L.R. 900;
7. We have carefully considered the submissions made by the learned counsel for the parties. We do not find any merit in the submissions made by Mrs. Rathore.
8. It has come in evidence before the Labour Court that the petitioner was working as a casual labourer. He was employed for the first time on 27.6.1992 and worked for only 10 days. This period was later on extended upto 31.7.1992. Therefore, it cannot be held that the workman was given repeated appointments of 89 days with deliberate breaks to avoid the application of the Act.
9. In Bhikku Rams's case (supra) this Court, while interpreting Section 2(oo)(bb) of the Act has held as under:-
'35. From the above, it is clear that termination of service of a workman, who has worked under an employer for 240 days in a period of twelve months preceding the date of termination of service will ordinarily be declared as void if it is found that the employer has violated the provisions of Section 25-F(a) and (b). If the employer resists the claim of the workman and invokes Section 2(oo)(bb), burden lies on the employer to show that though the employee has worked for 240 days in twelve months prior to termination of his service such termination of service cannot be treated as retrenchment because it is in accordance with the terms of a contract of employment or on account of non-renewals of the contract of employment. It has also to be shown by the employer that the workman had been employed for a specified work and the job which was being performed by the employee is no more required. Only a bona fide exercise of right by an employer to terminate the service in terms of the contract of employment or for non-renewal of contract will be covered by Clause (bb). If the court finds the exercise of rights by the employer is not bona fide or the employer has adopted the methodology of fixed term employment as a conduct or mechanism to frustrate the rights of the workman, the termination of the service will not be covered by the exception contained in Clause (bb). Instead the action of the employer will have to be treated as an act of unfair labour practice, as specified in the Fifth Schedule of the Act. The various judgments rendered by the different High Court? and by the Supreme Court clearly bring out the principle that only a bona fide exercise of the powers by the employer in cases where the work is of specified nature or where the temporary employee is replaced by a regular employee that the action of the employer will be upheld. In all other cases, the termination of service will be treated as retrenchment unless they are covered by other exceptions set out hereinabove.'
10. These observations make it abundantly clear that the benefit of the provisions of the act is available only to an employee who has worked for 240 days in 12 months prior to the termination of the service. These observations would, therefore, not be applicable in the facts and circumstances of the present case as the Labour Court has come to the conclusion that the workman had only worked for a period of 40 and 1/2 days in the year preceding the termination of his services. Giving the details of the period of work, it has been held,on the basis of the testimony given by MW1, by the Labour Court that the petitioner worked for 2 days in October, 1994. He then worked from 11.11.1994 to 30.11.1994.December 1994 to 31.12.1994, two days in October 1994, 14 days in November, 1994 and 7 days in December, 1994. He has not worked from January 1995 to August 1995. He worked 17 and 1/2 days in September, 1995. On the basis of the aforesaid material, the Labour Court has come to the conclusion that the workman had only worked for 40 and half days in the relevant period. Ms. Rathore has submitted that the Labour Court ought to have added the period from 8.12.1994 till 5.9.1995 to conclude that the workman had completed 240 days. According to the learned counsel, the frequent engagements of the petitioner on the same job would clearly establish that the work was of a permanent nature and the appointment was not for a fixed period. According to the learned counsel, the respondents have failed to prove any contract of appointment for fixed period. In support of this submission, the learned counsel has relied on the observations of the Supreme Court in the case of S.M. Nilajkar (supra). In the aforesaid case, the Supreme Court has observed as under:-
'14. .. to exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the above said ingredients so as to attract the applicability of Sub-clause (bb) above said. In the case at hand, the respondent-employer has failed in alleging and proving the ingredients of Sub-clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or daily wagers in a project. For want of proof attracting applicability of Sub-clause (bb) it has to be held that the termination of the services of the appellants amounted to retrenchment.'
11. From the above extract, it becomes evident that in the aforesaid case, the employer had failed in proving the ingredients of Sub-clause (bb) of Section 2(oo). Therefore, it was held that the termination of the services of the employee amounted to retrenchment. In the present case, the employer has placed on record sufficient material to prove that the workman had not completed 240 days in the year preceding the date on which his services were ordered to be terminated. The Management has also placed on record sufficient material to show that the latest appointed of the workman would have come to an end by efflux of time by 30th of September, 1994. He, however, chose to absent himself from 27.9.1994. Therefore, we are unable to hold that the Management has failed to prove that the employee had been given work for a fixed term.
12. In the case of Alumina Mazdoor (supra), the Division Bench of the Orissa High Court was dealing with two writ petitions, one filed by the employer and the other filed by the workmen against the common order passed by the Asstt. Labour Court Commissioner on 24.8.2000. The Asstt. Labour Commissioner had rejected the claim for payment of notice pay by the employer. This part of the order was challenged by the workman. The employer had questioned the validity of the same order by which the Asstt. Labour Commissioner directed payment of ex-gratia to the workmen, It was not disputed that no notice had been given to the workmen under Section 25 of the Act. The Labour Contractor had merely pasted the notice on the office notice board. In these circumstances, it was held that publication of notice in the Notice Board is not a substitute for individual service of notice on each workman. It was held that there was non-compliance of Section 25-F of the Act. The Asstt. Labour Commissioner also held that the tenure of contract was mentioned in the wage slip furnished to each individual workman and thus they were aware of the tenure of the contract and therefore, no notice was necessary. The Division Bench after examining the facts in that case came to the conclusion that 'The learned counsel for Union produced before us a copy of the employment card from which one cannot assume that the term of employment was mentioned therein. That is a card used by a workman for his identity, it cannot be held to be an order for employment'. These observations had been made by the Division Bench after examination of the particular wage-slip which was produced in the case. In the present case, the check-lists mention all the necessary details such as period of employment, the rate of the wages and the department in which the workman is employed. In the aforesaid case, it was the admitted case of the parties that provisions of Section 25-F of the Act were applicable. The aforesaid observations are not relevant, the petitioner has not completed 240 days which is a condition precedent for the applicability of the provisions of the Act, Counsel for the petitioner has sought to make up 240 days period by adding the period spent by the petitioner-workman in the ESI Hospital. As a matter of fact, the workman has only worked for 40-1/2 days in the preceding calender year, even according to the pleaded case of the petitioner. While discussing issue No. 3, the Labour Court specifically dealt with the question as to whether the intervening period from 8.12.1994 to 3.9.1995 for which the workman remained under treatment is to be taken into account for calculating the period of continuous service under Section 25-B of the Act. The Labour Court also considered the question as to whether the employment of the petitioner came to an end w.e.f 31.12.1994 itself. It had been stated by MW1, S.K. Sharma, Personnel Officer that the workman had been engaged from time to time as a temporary/casual worker. He was issued a check-list. He was taken on duty in September, 1995 and Check List dated 5.9.95 was issued to him. It was also pointed out on the basis of the attendance record which was produced before the Labour Court that the workman had absented from work w.e.f. 2nd half of the day on 27.9.1995. Thereafter, the witness of the Management stated that earlier the workman had been engaged from 11.11.1994 to 30.11.1994. He was again engaged in December 1994 to 31.12.1994. These periods were proved by producing the check-lists in Court, M-1 to M-18. In these circumstances, it would not be possible to hold that the Management had failed to prove that the workman had been employed periodically for specific periods.
13. Mrs. Rathore has also relied on a Division Bench judgment of this Court in Kulwinder Kaur's case (supra). In the aforesaid case, it was held that the oral evidence led by the Management was contrary to the written document. In that case, the reference had been decided against the workman. In view of the discussion above, it would become apparent that the aforesaid decision is not at all applicable in the facts and circumstances of the present case.
14. The Labour Court has come to the conclusion that the period spent by the petitioner in the ESI Hospital cannot be taken into account for working out the continuous length of service. Counsel for respondent No. 2 has supported the aforesaid finding by relying on the judgment of the Supreme Court in the case of Buckingham and Carnatic Company Ltd. (supra). While considering the provisions of Section 73 of the Employees, 'State Insurance Act, the Supreme Court held that the object of the Clause is to put a sort of a moratorium against all punitive actions during the pendency of the employee's illness. In other words, if the employee is ill and he has received sickness benefit for such illness,during that period of illness, no punitive action can be taken against him. Thereafter, the Supreme Court has further held as follows:-
'... There is another aspect of this question to which it is necessary to refer. Section 73(1) prohibits the employer from dismissing, discharging, reducing or otherwise punishing an employee. This seems to suggest that what is prohibited is some positive action on the part of the employer, such as an order passed by him either dismissing, discharging or reducing or punishing the employee. Where termination of the employee's services follows automatically either from a contract or from a standing order by virtue of the employee's absence without leave for the specified period, such termination is not the result of any positive act or order on the part of the employers, and so, to such a termination the prohibition contained in Section 73(1) would be inapplicable...'
15. That being the legal position the period spent by the workman in the ESI Hospital between 8.12.1994 and 4.9.1995 cannot be added to the number of days the workman had worked during the preceding year. Learned counsel for respondent No. 2 has also relied on the judgment of the Supreme Court in the case of Escorts Ltd. (supra). Therein, the workman had also not completed 240 days of service. It was also case of the Management that the termination of the service of the workman does not amount to retrenchment in view of Clause (bb) of Section 2(oo) of the Act, because the said termination of the services of the workman was effected in accordance with the terms of employer of the workman. In that case, the workman had actually worked for 214 days. The plea of the Management was accepted and it was held that since the termination of the services was in accordance with the contract of service, the provisions of Section 25-F of the Act would not be applicable. The Labour Court also took into consideration the law down by the Supreme Court in the case of Birla VXL Ltd. (supra) in coming to the conclusion that the petitioner was not entitled to the protection of Section 25-F of the Act. The Labour Court also relied on a Division Bench judgment of this Court in the case of Om Parkash (supra). The Labour Court has noticed that the workman had worked for two days in October, 1994, 14 days in November, 1994 and 7 days in December, 1994. He was receiving treatment in the ESI Hospital from 8.12.1994 till 3.9.1995. Thereafter he worked for 17 1/2 days. It is, therefore, clear that the workman had only worked 40 1/2 days in the preceding year from October, 1994 to September, 1995. Therefore, no relief could have been given to the workman under the Act.
16. In view of the above, we are of the opinion that the award does not suffer fromany error apparent on the face of the record. Consequently, we find no merit in the present writ petition and the same is hereby dismissed. No costs.
Sd-
S.S. Grewal, J.