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Judgment
Sharad Kumar Sharma, J
The issue of prime consideration in the present Writ Petition by the workman is as against the impugned award dated 19.01.2012 in Adjudication Case No. 128 of 2008, as to what would be "continuous service" and how it would be interpreted.
Section 2 (g) of the U.P. Industrial Disputes Act, 1947 reads as under :-
"(g) 'Continuous Service' means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an 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 tire 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.
Explanation. - In computing the number of days on which a workman has actually worked in an industry, the days on which -
(i) he has been laid off under the agreement or as permitted by standing order made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment, the largest number of days during which he has been so laid off being taken into account for tire purposes of this clause,
(ii) he has been on leave with full wages, earned in the previous year, and
(iii) in the case of a female, she has been on maternity leave; so however that the total period of such maternity leave shall not exceed twelve weeks, shall be included;"
After having scrutinized the definition of continuous service, as given under the Act, it provides that for the purposes of determining continuity of services of the workman working with the employer and for its interpretation, only those period of service are excluded to be considered where the break caused in the service are due to which the workman was rendered incapacitated to work on account of the contingency, which has been dealt with and contemplated in the definition of continuous service under the Act itself, i.e. industrial sickness, unauthorized leave, accident, strike and henceforth.
The brief facts, which are involved consideration in the present case and as pleaded by the workman in the written statement as filed before the Court below was that, it is an admitted case of the workman petitioner that he was inducted into the services of the respondent as Mali as back as in 1990 in the Gardener Section of the respondents employer. He also admits the fact that though his nature of work was as that of daily wager, but, he was paid with the monthly remuneration of a consolidated amount of wages as accruing to a daily wager. He has further submitted that in order to fortify his stand pertaining to the continuity of service of 240 days and so as to attract the implication of Section 6-N of the U.P. Industrial Dispute and its effect of non compliance and its effect on the dispensation of services w.e.f. 27th June, 1995. He submits that the employer has maintained the muster roll, which could be the best admissible proof of continuous employment and despite of his application being filed before the Labour Court on 4th March, 2004 and 9th January, 2006, the muster roll was never produced by the employer in order to enable the petitioner to show that in fact he had worked for more than 240 days in a calendar year so as to attract the implications of Section 6N of the U.P. Industrial Disputes Act, 1947.
There are twofold arguments, which would be relevant to answer the aforesaid plea of the petitioner for the reason being as to what effect would it have, if the applications dated 4th March, 2004 and 9th January, 2006 filed by the petitioner calling upon the employer to produce the muster roll and no orders were passed on it. First of all, it is always the responsibility and the burden, which has to be discharged by the workman, who claims the benefit of having worked for continuous for 240 days for the purposes of mandatory compliance of Section 6-N, it was rather he who has to shoulder the burden and discharge his responsibility by bringing the evidence on record to show his continuity in services for over 240 days as contemplated under Section 2 (g), which the petitioner has utterly failed to discharge. Secondly, the contention of the petitioner pertaining to the continuity of his service of having continuously for worked 240 days could not be accepted for the reason being that as per his own written statement, which has been dealt with by the Labour Court in its impugned award dated 19.01.2012, the petitioner in his written statement himself has given the breaks of service, when he has discharged his duties and invariability those breaks showed that he had worked 6-1/2 days, 23 days, 25 days, 25 days and 29-1/2 days and henceforth in a month.
It is not even the case of the workman before the Labour Court or in his pleading in the written statement that during the intervening period of breaks, it was on account of the contingency, which has been contemplated under Section 2 (g) in order to provide a continuity of services irrespective of breaks.
As per the pleadings itself, the breaks in services of the petitioner is not as a consequence of any of the contingency as contemplated under Section 2 (g) and, hence, the argument extended by the learned counsel for the petitioner that continuity of 240 days is to be taken into consideration after computing it from the total length of service, which the workman has discharged is not acceptable by this Court, because that itself deceives the concept of continuous service dealt in the Act, in its definition under Section 2 (g) of U.P. Industrial Disputes Act, 1947.
He has further raised a plea that there has been mala fide in the action taken by the employer/respondents of dispensing his services w.e.f. 27.06.1995 for the reason that he contends that when he met with an accident during the course of services, due to which, his leg was injured and he has raised a cause under the Workman Compensation Act, being Case No. 4 of 1997, which was decided on 2nd November, 2004 and the petitioner's case is that the employer being aggrieved and prejudiced because of the petitioner invoking the proceedings under the Workman Compensation Act, the action of his removal has been taken on 27th June, 1995. Though, an issue of attributing malice on the employers seems to be quite an easy pretext to challenge an action of the employer, but the plea of malice is always attached with the responsibility of its establishment and that too it was to be discharged by the workman, when he tries to take the shelter of the plea that the act of removal of 27th June, 1995 was malicious. There is no such evidence on record adduced by the workman to discharge his before the Labour Court and consequently, the Labour Court on considering the total length of the service rendered by the petitioner has drawn an inference that the manner in which, the services were discharged by him, it will not be falling to be a continuous services as defined under Section 2 (g).
Thus, in that view of the matter, since the petitioner has not been able to establish his continuity of services for more than 240 days and his nature of appointment since happens to be that of daily wager, no fault can be pointed out as far as the impugned action of removal dated 27th June, 1995 is concerned.
The learned counsel for the respondents submits that the propriety of the order of action of removal dated 27th June, 1995, cannot be faulted of because, in principal, the petitioner has accepted its propriety and has sought a belated reference by invoking the provisions contained under Section 4K of the Industrial Disputes Act, which was referred in 1999 by the Government Order No. 7753-57/C.P.45/98 dated 21st September, 1999, whereby, an adjudication case was referred, which was registered as Case No. 128 of 2008.
The plea of seeking belated reference by issuance of Government Order, i.e. almost after more than four years from the date of removal though under law, it does not create a bar that belated reference could not be sought for by the workman, hence, this plea of the respondents employer cannot be accepted and that too particularly when he has not questioned the proceedings of the Adjudication Case on the ground of belated reference by raising any such plea in his written statement. Thus, merely on the ground that there was a belated reference, it cannot be a ground not to consider the case before the Labour Court but still, if that be the situation, the workman has to establish to show that the ground for non compliance of Section 6-N of the Act was vitiated despite of having rendered 240 days of continuous service, which as per the finding recorded by the Labour Court, the petitioner has utterly failed to discharge and he has not been able to substantiate the plea by any evidence that he has worked for continuous 240 days.
Hence, after having considered the argument raised by the learned counsel for the parties and having gone through the records, this Court does not find any apparent error or mistake committed by the impugned award dated 19th January, 2012, which is under challenge in the present Writ Petition. Consequently, this Writ Petition lacks merit and the same is accordingly dismissed.