ADMINISTRATOR KAMALA NEHRU MEMORIAL HOSPITALversusVINOD KUMAR

A          ADMINISTRATOR KAMALA NEHRU MEMORIAL HOSPITAL
                                            v.
                                    VINODKUMAR

                                  DECEMBER 8, 2005

B                [ARIJIT PASA YAT AND TARUN CHATTERJEE, JJ.]


           Labour Laws:

           Industrial Disputes Act, 1947; Ss. 2(eee), 17(B) and 25(B)/Uttar Pradesh
C lndustri(ll Disputes Act, 1947; Section 2(g) and 6(N):
           Termination of services of a workman/Clerk by employer-hospital-
     Dispute-Held: Since the workman remained in continuous service only for
     a period of five months and not for one year, he was not entitled to the
D    protection/relief in terms of provisions· of the U.P. Act-High Court erred in
     setting aside the order of the labour Court by counting the service of the
     workman as continuous in terms of amended provisions of law in Section 25-
     B of the Industrial Disputes Act instead of Section 2(g) of the U.P. Act, which
     is impermissible.

E          Appellant-Hospital terminated the services of the respondent-workman
     raising a dispute, which was referred by the State Government to Labour Court
     for adjudication. According to the workman, he had worked as Clerk for 240
     days continuously in one calendar year and, therefore, he was entitled to the
     protection in terms of Section 6(N) of the U.P. Act. Labour Court held that
     the respondent had failed to establish his claim, as he remained in continuous
F    service only for a period of five months, even though he might have worked
     for 240 days or more during a year. The order was challenged by the
     respondent Single Judge of the High Court held that since amendment
     brought in the Industrial Disputes Act was prospective in effect, the view taken
     by the Labour Court that the respondent had not completed 240 days'
G    continuous service in one calendar year suffers from manifest error of law
     and therefore, it was liable to be set aside. Hence the present appeal.

           It was contended by the appellant-employer that though some changes
     were introduced in the Industrial Disputes Act, but corresponding provisions
     in the Uttar Pradesh Industrial Dispute Act remained unamended and
II                                         572
             ADMINISTRATOR KAMALA NEHRU MEMORIAL HOSPITAL 1•. VINOD KUMAR     573

    continued as before; that the definition of "continuous service" as given in     A
    Section 2(g) of the U.P. Act was clearly inapplicable in the case of the
    respondent; that the view expressed by the High Court regarding entitlement
    of respondent under Section 17-B of the Industrial Disputes Act is contrary
    to facts.

          Allowing the appeal, the Court                                             B

          HELD: I.I. In view of the clear definition of "continuous service" in
    Section 2(g) of the Uttar Pradesh Industrial Disputes Act, which means
    uninterrupted service of not less than 240 days in one completed year, the
    respondent-workman was clearly not entitled to any relief. [576-H]
                                                                                     c
          1.2. As a matter of fact the Labour Court has found that the respondent
    had worked for five months which is undisputedly less than 240 days. The
    High Court seems to have adopted the definition given in Section 25-B of the
    Industrial Disputes Act, which is clearly impermissible. Definition of
    "Continuous Service" given in Section 25-B of the l.D. Act is different from     D
    the definition of the said expression given in Section 2(g) of the U.P. Act.
                                                                        (577-B, CJ

          1.3. As per the pre-amended position it was necessary for the workman
    to continue in service in the 12 calendar months period to have actually
    worked for at least 240 days. After the amendment the position is different.     E
    But the earlier position remains the same so far as the U.P. Act is concerned.
•   That being the case the High Court's judgment is clearly unsustainable and
    is accordingly set aside. (577-D]

          2. The observations of the High Court that because of the compulsions
    of unemployment the workman has no option but to continue as a practising        p.
    Advocate are clearly contrary to material on record. The respondent was not
    entitled to any entitlement under Section 17-B of the Act. However if any
    amount has already been paid in the peculiar facts of the case, the respondent
    shall not be liable to refund the same. [577-F, GI .

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7908 of2004.               G
           From the Judgment and Order dated 22. I 0.2003 of the Punjab and
    . Haryana High Court in C.M.W.P. No. 3530of1985.

         Raju Ramachandran, Arjun Bhandari, Mukesh K. Sinha, Suman Sourabh
    Sinha and Arun K. Sinha for the Appellant.                                       H
    574                     SUPREME COURT REPORTS (2005) SUPP. 5 S.C.R.

A         R.D. Upadhyay, Awadhesh Kr. Singh and J.P. Tripathi for the Respondent.

          The Judgment of the Court was delivered by

           ARIJIT PASAYAT, J. This appeal is directed against the judgment of
    the learned Single Judge of the Allahabad High Court. The learned Single
B   Judge held that the tennination of services of the respondent was contrary
    to the provisions of Section 6(N) of the Uttar Pradesh Industrial Disputes Act,
    1947 (in short the 'U.P. Act'). Directions were given for reinstatement with
    continuity of service and 50% of the 'back wages from the date of tennination
    of the services till the date of award.

C         Background facts in a nutshell are as follows:

          On the basis of a dispute raised by the respondent a reference was
    made by the State Government to the Labour Court, Allahabad for adjudication
    of the following question:

D           "Whether the termination of services .of its workman Vinod Kumar,
            Clerk w.e.f. 22.10.87 by the employer is proper or legal? If no, the
            benefit/relief the concerned workman is entitled for the other with
            details?"

           The respondent's case as set up in the dispute and as was canvassed
E   before the labour court was that he was employed by the appellant (hereinafter
    referred to as the 'employer') on 16.9.1980 as a clerk and had continued till
    2 lst October, 1982 with some breaks. According to him he had worked for 240
    days continuously in one calendar year and, therefore, was entitled to the
    protections of Section 6(N) of the U.P. Act. The Labour Court held that the
F   respondent had not established his claim. It was noticed that the respondent
    was appointed for a limited period and after the expiry of that period he was
    removed from job. On the basis of subsequent applications appointments
    used to be given and he used to get engagement accordingly. He remained
    in continuous service only for 5 months. Therefore, though he may have
    worked for 240 days or more during the period of his service he had not
G   remained in continuous service for one year. The labour court found that he
    was engaged for a special work. Aggrieved by the order of the Labour Court
    a writ petition was filed by the respondent. The High Court held (without
    indicating as to which provision it was referring to) that the amendment
    brought in the Industrial Disputes Act, 1947 (in short the 'Act') is prospective
H   and not retrospective. Reference was made to several decisions of various
    High Courts to hold that since amendment brought in the Act was prospective,
 ADMINISTRATOR KAMALA NEHRU MEMORIAL HOSPITAL 1•. VINOD KUMAR (PASAYAT, J.) 575


the view taken by the Labour Court that the respondent had not completed          A
240 days' continuous service in one calendar year suffers from manifest error
of law and therefore, was liable to be set aside.

       In support of the appeal, learned counsel for the appellant submitted
that though some changes were introduced in the Act, so far as Section 6(N)
of the U.P. Act is concerned the same was not amended and continued as            B
b~fore. The definition of "continuous service" is given in Section 2(g) of the
U.P. Act and the same was clearly not applicable in case of the respondent.
It was further submitted that the view expressed by the High Court regarding
entitlement of respondent under Section 17-B of the Act is contrary to facts.

      Learned counsel for the respondent on the other hand submitted that         C
reference was made though it was not specifically mentioned by the High
Court to Section 2 (oo)(bb) of the Act which was amended and the same was
prospective and, therefore, the High Court's view is correct.

      In order to appreciate rival submission reference to Sections 2(g) of the
U.P. Act and Section 25-B of the Act is necessary. The definitions read as        D
follows:

        UP.Act
        "Section 2(g): 'Continuous Service' means uninterrupted service,
        and includes service which may be interrupted merely on account of
        sickness or authorized leave or an accident or a strike which is not      E
        illegal, or a lock out or a cessation of work which is not due to any
        fault on the part of the workman, and a workman, who during a period
        of twelve calendar months has actually worked in an industry for not
        less than two hundred and forty days shall be deemed to have
        completed one year of continuous service in the industry."                F
        Act

        Section 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 G
        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 whic'1 is not illegal, or a lock-out or a
        cessation of work which is not due to any fault on the part of the
        workman;
                                                                                  H
     576                    SUPREME COURT REP()RTS [2005) SUPP. 5 S.C.R.

·A           (2) where a workman is not in continuous service within the meaning
             of clause (I) 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, ifthe workman, during a period of twelve
             calendar months preceding the date with reference to which.calculation
B            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;
c            (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) ~inety-five days, in the case of a workman employed below
D                ground in a mine; and
                 (ii) one hundred and twenty days; in any other case.
            Explanation : For the purpose of clause (2), the number of days on
            which a workman has actually worked under an employer shall include
E           the days on which -
                 (i) he has. been laid-off .under an agreement or 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 establishment;
F                (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,
G                however, that the total period of such maternity leave does not
                 exceed twelve weeks."
           In view of the clear definition of the continuous service in Section 2(g)
     which means uninterrupted service of not less than 240 days in one completed
     year, the respondent was clearly not entitled to any relief. The interruptions·
H    which are excluded while computing the uninterrupted service are set out in
   ADMINISTRATOR KAMALA NEHRU MEMORIAL HOSPITAL 1•. VINOD KUMAR fPASAY AT, J.] 577


   the Section itself. They are on account of sickness or authorized leave or an A
.: accident or a strike which is not illegal or a lock out or a cessation of work
   which is not due to any fault on the part of the workman. Further Section 2(g)
   provides that worker who during the period of twelve calendar months has
   actually worked in an industry for not less than 240 days shall be deemed to
   have completed one year of continuous service in the industry. As a matter B
   of fact the Labour Court has found that the respondent had worked for 5
   months which is undisputedly less than 240 days. The High Court seems to
   have adopted the definition given in Section 25-B of the Act, which is clearly
   impermissible. Definition of"Continuous Service" given in Section 25-B of the
   Act is different from the definition of the said expression given in Section 2(g)
   of the U.P. Act. By Act 36of1964, with effect from 19.12.1964, the definition C
   in Section 25-B was substituted. Prior to that the definition of "Continuous
   Service" was same in the Act and the U.P. Act. Section 2(eee) of the Act was
   omitted with effect from 19.12.1964 and changes were introduced in Section
   25-B of the Act. But Section 2(g) of the U.P. Act remain unaltered. As per the
   pre-amended position it was necessary for the workman to continue in service D
    in the 12 calendar months period to have actually worked for at least 240 days.
   After the amendment the position is different. But the earlier position remains
   the same so far as the U.P. Act is concerned. That being the case the High
   Court's judgment is clearly unsustainable and is accordingly set aside.
        The High Court's conclusions about entitlement of respondent under E
 Section 17-B of the Act is relatable to non-employment and non-receipt of
 adequate remuneration of the workman. The appellant had adduced ample
 material to show that the respondent was enrolled as an Advocate in 1983
 and was a busy practitioner with decent professional income. It had even
 given a list of large number of cases in which the respondent had appeared.
 Without any material to support its conclusio!ls, the High Court observed F
 that "because of the compulsions of unemployment he has no option but to
 continue for a short period as a practising Advocate" (underlined for
 emphasis).

       The conclusions are clearly contrary to material on record. The
 respondent was not entitled to any entitlement under Section 17-B of the Act.       G
 However if any amount has already been paid in the peculiar facts of the case,
 the respondent shall not be entitled to refund the same.

       The appeal is allowed without any order as to costs.

 S.K.S.                                                         Appeal allowed.
                                                                                     H