MANU/MH/0933/2005

Equivalent/Neutral Citation: 2006(1)ALLMR460, 2006(2)BomC R625, 2006LabIC 155, 2006(1)MhLj147, 2006(7)SLR490

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5631 of 1995
Decided On: 07.10.2005
Appellants: Bajaj Auto Limited
Vs.
Respondent: Ashok Dnyanoba Dhumal and Ors.
Hon'ble Judges/Coram:
B.H. Marlapalle, J.
Counsels:
For Appellant/Petitioner/Plaintiff: J.P. Cama and Swati V. Deshpande, Advs., i/b.,
Bodhanwala and Co.
For Respondents/Defendant: Seema Sarnaik, Adv. for Respondent No. 1
Case Note:
Labour and Industrial - Reinstatement - Industrial Disputes Act, 1947 -
Labour Court held that Respondent was illegally terminated and directed
Petitioner to reinstate him on his original post with continuity of service and
full back wages for intervening period - Hence, this Petition - Whether, award
passed by Labour Court was valid - Held, there was no evidence placed before
Labour Court that Respondent was being paid for weekly holidays or that
under any statutory requirement he was so required to be paid - It was also
not brought on record that similarly placed helpers or any other daily rated
employees in factory were being paid for weekly rest days - Management
reasonably proved that workman had worked for 207 days - Hence, conclusion
drawn by Labour Court that Respondent had worked for 240 days was
erroneous - Further, failure to maintain seniority list by itself would not result
into termination - Thus, there was no termination of service - Thus, award
passed by Labour Court was quashed and set aside - Petition allowed.
Ratio Decidendi
"Order passed by Courts shall be void if contrary to settled position of law."
JUDGMENT
B.H. Marlapalle, J.
1. This petition filed by the employer-company takes exception to the award passed by
the First Labour Court at Pune in Reference (IDA) No. 36 of 1990 directing to reinstate
the respondent-workman on his original post with continuity of service and full back
wages for the intervening period. The undisputed factual matrix relevant for deciding
the petition could be described as under.
1A. The respondent-workman came to be employed as a helper on temporary basis as a
daily rated unskilled workman during the following periods:

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After 15-11-1987 the respondent-workman was not employed by the petitioner and no
dispute was raised on this count. By an order dated 28-03-1988 he came to be
employed as Helper-1 from 26-03-1988 for a maximum period of about one month and
the appointment was on account of exigencies of work and was likely to be terminated
at any time during the period of 30 days without notice or salary/wages in lieu of
notice. The daily rate of wages was fixed at Rs. 6.80 in the grade of Rs. 6.80-12.30. On
25-04-1988 he was issued a letter of extension since the job for which he was
temporarily employed had not been completed. This extension of one month was upto
25/5/1988. Similarly another extension letter was issued on 25/5/1988 for extending
the temporary tenure upto 30-09-1988. Finally, by the fast communication dated 30-09-
1988 his tenure was extended upto 30-11-1988 on the same terms and conditions. After
30-11-1988 there was neither any extension nor any fresh appointment order was
issued in favour of the respondent-workman. He raised a demand for reinstatement
sometimes in the year 1989 and the said demand came to be referred for adjudication
to the Labour Court in Reference (IDA) No. 36 of 1990.
2. In the statement of claim filed before the Labour Court on or about 29-06-1990, the
workman stated that he was in the employment since 29-07-1984 as a helper in the
paint shop and claimed that as he insisted/requested for all benefits of permanency, the
employer terminated the service from 1/12/1988 or the employer did not give any fresh
appointment. He also claimed that the juniors and fresh employees were retained but he
was not continued. Para 4 of the statement of claim reads thus and the reinstatement
demand as made was based on the averments therein:
"4. In fact, while giving artificial breaks to the Second Party workman, the First
Party Management never followed the procedure laid down under the Industrial
Disputes Act so also the provisions of Standing Orders applicable to them. The
First Party Management had never displayed seniority list on the Notice Board
before terminating the services of the Second Party workman. Similarly, no
permission was obtained from the appropriate Government before taking the
action of termination of the Second Party."
3 . The Management filed its Written Statement and admitted that the respondent-
workman was employed as a helper on temporary basis with daily rated wages. In
support of the petitioner's contention that the demand for reinstatement or the
allegation of illegal termination from service could not be entertained as the respondent
had not attained the status of permanency either under the Standing Orders or on
account of completing 240 days of service in the last spell of his appointment i.e. from
26-03-1988 to 30-11-1988, it was pointed out that during this period he had worked for
207 days and he was paid for 207 days because he was a daily rated helper. It was
further submitted by the Management that the demand for the different models of two
wheelers (Scooters) and three wheelers (auto-rickshaw) had considerably dropped in
the domestic market thereby reducing the requirement of temporary helpers to be
engaged in different production shops, as a result of which the number of temporary

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helpers employed in the factory had also reduced. It also submitted that by any stretch
of imagination the non engagement or non-renewal of temporary tenure did not amount
to an act of retrenchment, leave alone illegal retrenchment.
4 . The workman himself stepped in the witness box to support his claim and the
Management examined Mr. Suresh Purushottam Dani who was at the relevant time
working as Senior Manager (Personnel) with the Company. He was responsible for
recruitments, industrial relations, welfare activities, appointments and terminations etc.
of the workman required in the different shops. He was also notified as a Manager
under the Model Standing Orders.
On appreciation of the evidence and by taking into consideration the rival submissions
advanced by both the parties, the learned Judge of the Labour Court held that the
respondent-workman was illegally terminated and the said termination amounted to
retrenchment without complying with the mandatory requirements of Section 25F of the
Industrial Disputes Act, 1947 (the I.D. Act for short). The Labour Court also held that
the exception carved out in Section 2(oo)(bb) of the I.D. Act was not applicable to the
respondent-workman on the ground that there was sufficient work available in the
factory at the relevant time and the termination of service on expiry of the tenure fixed
in the appointment order was not bona fide because the work for which the workman
was employed was still in existence. The Labour Court further held that the action of the
employer also suffered from other irregularities like non maintenance of seniority list.
Though the Labour Court accepted the contention that from 26/3/1988 to 30/11/1988
the workman had worked for 207 days, it held that the days of weekly off during this
period as well as festival holidays were required to be added and if so added the total
number of working days were beyond 240 days during that period. On this count it was
necessary for the Management to comply with the mandatory requirements of Section
25F of the I.D. Act, as per the Labour Court.
5. Mr. Cama, the learned Senior Counsel appearing for the petitioner, submitted that the
Labour Court fell in manifest errors both on facts as well as in law while passing the
impugned award. As per him the workman had never raised the plea of illegal
retrenchment either in the statement of claim or while raising the demand for
reinstatement and when such a claim was not made, it was not permissible in law for
the Labour Court to adjudicate upon the issue of illegal retrenchment. Even otherwise
the appointments in the last tenure being for fixed period, they were within the ambit of
Section 2(oo)(bb) of the I.D. Act and there was no evidence brought on record that
after the workman's appointment was not renewed, some other helpers were recruited
in the said shop or in some other department. The appointment being for a fixed tenure,
the respondent was put on notice as and when the appointment orders were issued and
there was no termination of his service. It was a case of non renewal of contract of
employment on expiry of the original tenure of the contract and thus covered by the
first part of Section 2(oo)(bb) of the I.D. Act. It was urged by the petitioner that on
these grounds the impugned award is required to be quashed and set aside.
Ms. Sairnaik, the learned Counsel for the respondent-workman, on the other hand has
supported the impugned award and as per her it does not call for any interference under
the supervisory jurisdiction of this Court. The view taken by the Labour Court is a
possible view on assessment of the oral and documentary evidence and there was
sufficient work available under the petitioner's factory at the relevant time. This was not
an employment under a project or a scheme nor was he appointed on probation. It was
also submitted that the discontinuation of employment was not by way of any term of
appointment stipulated in the contract of service or standing orders. She has relied

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upon the decision in the case of S.M. Nilajkar and Ors. v. Telecom District Manager,
Karnataka reported in MANU/SC/0261/2003 : (2003)IILLJ359SC .
6 . It is true that the workman had not raised the plea of illegal retrenchment and all
that was stated in the statement of claim before the Labour Court was two folds,
namely, with effect from 1/12/1988 he was not given appointment though the work was
available and appointment was denied because he insisted for the benefits of
permanency and secondly, as quoted hereinabove, he was given artificial breaks without
following the procedure laid down under the I.D. Act as well as the Standing Orders and
the Management failed to display seniority list and obtain permission from the
appropriate Government before taking action of termination. The learned senior counsel
rightly relied upon a three Judge Bench decision in the case of Shankar Chakravarti v.
Britania Biscuit Co. Ltd. and Anr. reported in MANU/SC/0374/1979 : (1979)IILL J194SC
in this regard and more particularly the following observations :
"...If there is no pleading raising a contention there is no question of
substantiating such a non-existing contention by evidence. It is well settled that
allegation which is not pleaded, even if there is evidence in support of it,
cannot be examined because the other side has no notice of it and if
entertained it would tantamount to granting an unfair advantage to the first
mentioned party. We are not unmindful of the fact that pleadings before such
bodies have not to be read strictly, but it is equally true that the pleadings must
be such as to give sufficient notice to the other party of the case it is called
upon to meet. The rules of fair play demand that where a party seeks to
establish a contention which if proved would be sufficient to deny relief to the
opposite side, such a contention has to be specifically pleaded and then proved.
But if there is no pleading there is no question of proving something which is
not pleaded. This is very elementary."
7 . As the workman had raised an issue of obtaining Government permission before
termination as well as displaying of seniority list, obviously, it was for the Management
to state that Section 25N of the I.D. Act was not attracted and consequently it was not
required to comply with the mandatory provisions of Section 25F of the said Act. The
pleadings of the Management in its Written Statement are required to be read in this
context as it has come in the evidence of its witness that the Company at the relevant
time was engaging about 8850 employees, including temporary workers and thus
Chapter V-B of the I.D. Act was applicable to the petitioner.
8 . On the first point of completion of 240 days from 26/3/1988 to 30/11/1988 the
findings of the Labour Court that the workman completed more than 240 days of service
are unsustainable. The Labour Court sought to add to the actual number of working
days the days of weekly off during that period and as per the Labour Court they came to
35 days and they were required to be added to the days actually worked and so added,
the number of days worked exceeded 240 days. The Labour Court referred to the
decision of the Supreme Court in the case of Workmen of American Express
International Banking Corporation v. Management of American Express International
Banking Corporation reported in MANU/SC/0237/1985 : (1985)IILL J539SC . The said
decision was based on the provisions of Sections 16 to 18 of the Delhi Shops and
Establishments Act, 1954 which provide for close days, weekly holidays and wages for
the holidays. Sections 17 and 18 read thus:
"17. 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

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 commercial establishments required by this Act to observe a close day, be on
the close day".
"18. No deduction shall be made from the wages of any employee on account of
the close day under Section 16 or a holiday granted under Section 17 of this
Act.
If an employee is employed on a daily wage, he shall none the less be paid his
daily wage for the holiday and where an employee is paid on piece rates, he
shall receive the average of the wages received during the week."
In para 5 of the said decision, their Lordships observed as follows:
"...What is continuous service has been defined and explained in Section 25-B
of the Industrial Disputes Act. In the present case, the provision which is of
relevance is Section 25-B(2)(a)(ii) which to the extent that it concerns us,
provides that a workman who is not in continuous service for a period of one
year shall be deemed to be in continuous service for a period of one year if the
workman, during a the period of twelve calendar months preceding the date
with reference to which the calculation is to be made, has actually worked
under the employer for not less than 240 days. The expression which we are
required to construe is 'actually worked under the employer'. This expression,
according to us, 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...."
(emphasis supplied)
9 . The above observations were also referred to in the case of Essen Deinki v. Rajiv
Kumar reported in MANU/SC/0894/2002 : (2002)IIILL J1111SC and it has been held,
inter alia, that the requirement of the statute of 240 days cannot be disputed and it is
for the employee concerned to prove that he has in fact completed 240 days in the last
preceding 12 months' period. The onus of proving the completion of 240 days of work
is thus shifted to the workman. In the case of Range Forest Officer v. S.T. Hadimani
reported in MANU/SC/0115/2002 : (2002)ILL J1053SC it has been reiterated that it is for
the claimant to lead evidence to show that he had in fact worked upto 240 days in the
year preceding his termination.
1 0 . In the case at hand, there is no evidence placed before the Labour Court that
respondent-workman was being paid for weekly holidays or that under any statutory
requirement he was so required to be paid. It was also not brought on record that
similarly placed helpers or any other daily rated employees in the factory were being
paid for the weekly rest days. It would be useful to refer to the relevant provisions of
the Factories Act, 1948, the Maharashtra Factories Rules 1963 and the Government
Resolution issued by the Government of Maharashtra on 22nd July 1998 under Section
5(2) read with Section 3(1) of the Minimum Wages Act, 1948 in respect of the
employment in Engineering Industry. There is no dispute that the petitioner is a factory
engaged in the manufacture of 2 and 3 wheel vehicles and, therefore, an Engineering
Industry. Sections 51 and 52 of the Factories Act have prescribed weekly hours and
weekly holidays. Section 51 states that no adult worker shall be required or allowed to
work in a factory for more than 48 hours in any week. Section 52 mandates that there
shall be a weekly holiday and the working days of the week shall be as prescribed

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thereunder. Under Section 54 daily hours have been prescribed. It states that subject to
the provisions of Section 51, no adult worker shall be required or allowed to work in a
factory for more than 9 hours in any day. As per Section 59 where a worker works in a
factory for more than nine hours in any day or for more than forty-eight hours in any
week, he shall, in respect to overtime work, be entitled to wages at the rate of twice his
ordinary rate of wages. The scheme of these sections, therefore, shows that in a week
the workers in the factory are required to work for six days and the daily hours are
normally eight hours so that in a week they work for 48 hours. There is no provision
under the Factories Act providing for payment for the weekly holidays as is the case
under the Delhi Shops and Establishments Act and as referred to hereinabove. Sections
79 and 80 provide for annual leave with wages and wages during leave period
respectively. Section 79 states that every worker who has worked for a period of 240
days or more in a factory during the calendar year shall be allowed during the
subsequent calendar year leave with wages for a number of days calculated at the rate
provided thereunder.
In the G.R. dated 22/7/1998 the minimum rates of wages for the Engineering Industry
have been prescribed on per month basis and for appointment on daily wages so as to
comply with the requirement of minimum rates prescribed a procedure has been set out
in Clause 3 of the said G.R. It reads thus:
"The minimum rates payable to any employee employed in any category on
daily wages shall be computed by dividing the minimum rate of monthly wages
fixed for the class of employees to which he belongs by 26, the quotient being
stepped upto nearest paisa."
If the monthly wage was to be divided by 30 days while fixing the minimum daily
wages, it would be presumed that such daily rated employees were entitled for wages
for weekly rest days. The State Legislature thus aware that under the Factories Act there
was no mandatory requirement of payment of wages for the weekly rest days and,
therefore, while fixing the daily wages, the monthly wages prescribed in the GR are
required to be divided by 26 days and not by 30 days.
1 1 . The decision in the case of American Express International Banking Corporation
(Supra) has to be read in this context and even in the said decision it is clear that the
expression "actually worked under the employer" must necessarily comprehend all those
days during which the workman 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 or the standing orders. It has come on record that to the
petitioner factory the provisions of Model Standing Orders are applicable and the Model
Standing Orders do not prescribe that the workmen working in the
factory/establishment are required to be paid for the weekly rest days.
1 2 . The employer has pointed out that during the period from 26/3/1988 to
30/11/1988 the respondent-workman worked for 207 days. This could not be
impeached by any other evidence. The workman on the other hand claimed that he
worked for 215 days but for the period from March 1988 to November, 1988.
Admittedly, in the month of March, 1988 he reported for duty from 26/3/1988 only and
he was not in employment for the earlier period. In these circumstances, the
Management reasonably proved that workman had worked for 207 days. The
conclusions drawn by the Labour Court that the respondent-workman had worked for
240 days during the period from 26/3/1988 to 30/11/1988 are thus manifestly

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erroneous and against the well settled legal position.
13. Now coming to the applicability of Section 2(oo)(bb) of the I.D. Act. At the first
instance adjudication on this issue would be called for when it was proved that the
workman had put in 240 days service or more during the preceding 12 months to the
date of termination. This issue has been answered against the workman in the instant
case and, therefore, it is not necessary to examine the applicability or otherwise of the
said Section. The workman in his depositions, while in the witness box, admitted that
he was working on the conveyer line of paint shop as a helper and when conveyer was
in motion the paint shop operator was required to paint certain parts and he was a
helper to such a paint shop operator. He also admitted that as per the factual position of
the work done by the paint operator, the helpers are provided to help him. He stated
that he was not aware as to the exact appointment date of each of the temporary
employees. He also admitted that he had no documentary evidence to show that on his
termination any fresh employee was engaged nor could he tell any such names. The
witness of the Management in detail stated the procedure followed for recruitment of
helpers on temporary basis and stated that as and when there was increase of work of
permanent nature, appointments of such temporary workers were made on daily wages
which was almost equal to the wages paid to the permanent workers. He also stated
that the factory maintained the seniority list of the employees and no junior employee
to the respondent-workman was continued in the employment. He went on to state that
the respondent-workman was not terminated from service and there was no case of
discharge or dismissal and it was a case of non renewal of contract on expiry of the
original contract period. He further pointed out that because of the market situation, the
requirement of manpower was reduced and on the day he was examined there was no
temporary helper employed in the factory. He specifically denied the suggestion that the
workman was being paid for weekly off days. The Labour Court found fault with the
employer for not maintaining seniority list. The evidence of the Management's witness
states otherwise. However, it is now well established that the requirements in Clause
(a) and (b) of Section 25F of the I.D. Act are mandatory whereas the requirements
under Clause (c) thereunder is only directory and, therefore, failure to maintain a
seniority list by itself would not result into the termination order being declared as
illegal merely on the ground that seniority list was not maintained. In any case, there
was no termination of service in the instant case.
14. It is thus clear that the view taken by the Labour Court is against the well settled
legal position by a catena of decisions and, therefore, the impugned award being
contrary to law, it deserves to be quashed and set aside, by exercising powers under
Article 227 of the Constitution of India.
15. The petition, therefore, succeeds and the same is hereby allowed. The impugned
award is quashed and set aside. Reference (IDA) No. 36 of 1990 fails and the same
stands dismissed. Rule made absolute accordingly with no order as to costs.

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