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TMI Blog2003 (9) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... the labour court that none of the workmen had worked for 240 days In the year preceding the date of termination. In this view, the labour court, in the award dated 31st May, 1991, concluded that the workmen/respondents were not entitled to protection of Section 6N of the UP Act. According to labour court, the workmen ought to have completed 240 days in a calendar year preceding the date of termination/retrenchment so as to claim benefit of Section 6N of the UP Act. Considering the evidence, the labour court also held that all the 29 workmen had worked for more than 240 days in each year during the past years prior to 1988. The effect of the finding recorded by the labour court is that the workmen have worked for more than 240 days from the year 1983 to 1986 but they having not worked for 240 days from 1st April, 1986 to 31st March, 1987, they were not entitled to protection and benefit of the continuous service under the UP Act. On appreciation of evidence, the finding recorded by the labour court is as follows: In these circumstances, I arrive to the conclusion that the employer have failed to dispute the evidence of the workmen that all the 29 workmen had worked for more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opounded by the management is accepted, it will provide a handle of abuse in the hands of the management. 4. Section 6N was inserted in the UP Act by Section 8 of the UP Act No. 1 of 1957. It reads as under: 6N. Conditions precedent to retrenchment of workmen.-- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workmen has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages for the period of the notice: Provided that no such notice shall be necessary if the, retrenchment is under an agreement which specified a date of the termination of service; (b) the workmen has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months, and (c) notice in the prescribed manner is served on the State Government. 5. The expression 'continuous service' is defined in Section 2(g) of the UP Act whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been on leave with full wages, earned in the previous year, and (c) 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. 7. The same Amending Act introduced the definition of 'continuous service' in Section 2(eee) as under: 2.(eee) '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 illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman; 8. Section 25B was, however, substituted by Industrial Disputes (Amendment) Act, 1964 (36 of 1964) w.e.f. 19th December, 1964 and the same reads as under : 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 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 which is not illegal, or a lock-out or a cessation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... workman can be considered to have completed one year of continuous service in an industry, it must be shown first that the workman was employed for a period of not less than 12 calendar months and next that during those 12 calendar months, he had worked for not less than 240 days. In that case, the workman had not been employed for a period of 12 calendar months. Therefore, the Court held that it was unnecessary to examine whether actual days of work were 240 or more for in any case the requirements of Section 25B would not be satisfied by mere fact of number of working days being not less than 240 days. The effect was that if a workman completes actual 240 or more days of work in less than 12 calendar months, he would not be entitled to the benefit of beneficial legislation. This anomaly led to the amendment of the ID Act in the manner abovestated. 10. Under the aforesaid legislative background, the question involved is required to be considered. Section 2(g) of the UP Act does not require a workman, to avail the benefit of the deeming provision of completion of one year of continuous service in the industry, to have worked for 240 days during 'preceding' period of 12 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (1) and his case need not be covered by Clause (2). Clause (2) envisages the situation not governed by Clause (1). Clause (2)(a) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backward and just preceding the relevant date the date of retrenchment. These were the facts under which it was held as to how the period of 240 days was to be calculated. The decision in the case of Mohan Lal does not lay down that if a workman had worked for more than 240 days in any number of years and if during the year of his termination; he had not worked for the said number of days, he would not be entitled to the benefit of Section 25B. The question with which we are concerned was not under consideration in Mohan Lal's case. If the viewpoint propounded by the management is accepted, then in every year the workman would be required to complete more than 240 days. If in any one year the employer gives him actual work for less than 240 days, the service of the workman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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