TaxTMI 
TaxTMI 
2005 (7) TMI 618
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....al Tribunal-cum-Labour Court, Rohtak as to whether the termination of service of the respondent is justified and valid, and, if not, to what relief he was entitled under law. 3. In his claim statement the respondent pleaded that he was appointed as Helper on 16.3.1988 on daily wage basis. His work and conduct was always satisfactory but his services were terminated on 28.2.1989 without assigning any reason. He further pleaded that neither any notice nor wages in lieu of notice were paid to him and as he had completed 240 days of service in a calendar year, the termination of his service was in violation of Section 25-F of the Act and, therefore, the same was liable to be set aside and he was entitled to be reinstated with continuity of service and full back wages. The appellant (management) filed a written statement on the plea that the respondent Rudhan Singh was initially appointed on daily wage basis for a fixed period from 16.3.1988 up to 31.3.1988. Thereafter, he was appointed as Washing Boy, Helper and Water Carrier as per the needs of the Department. According to the appellant the appointment of the respondent was for a fixed period which came to an automatic end and, the....
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.... the Industrial Tribunal-cum-Labour Court nor the award shows that any evidence was led to substantiate such a plea that the respondent had been engaged on contract for a fixed period or his contractual employment had come to an end in accordance with any stipulation contained therein in that behalf. This plea has also not been raised before the High Court and, therefore, it is not open to the appellant to raise a new plea at this stage. 5. Learned counsel for the appellant has next submitted that according to the own case of the respondent he was appointed on 16.3.1988 and his services were terminated on 28.2.1989 and thus he had not worked for one year and consequently Section 25-F of the Act would not apply to his case. In support of this submission reliance has been placed on Sur Enamel and Stamping Works Ltd. vs. The Workmen [AIR 1963 SC 1914], wherein it was held that under Section 25-F of the Act only a workman, who has been in continuous service for not less than one year under an employer, is entitled to its benefit. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period....
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....n repealed and S. 25-B(2) now begins with the clause "where a workman is not in continuous service ...... for a period of one year". These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. ........." In view of this authoritative pronouncement the requirements of Section 25-F of the Act would be satisfied if a workman has worked for 240 days in a period of 12 months and it is not necessary that he should have been in the service of employer for complete one year. The Industrial Tribunal-cum-Labour Court has recorded a finding that the respondent has worked for 264 days and this finding has not been challenged before the High Court. In this view of the matter the provisions of Section 25-F of the Act are clea....
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.... as it is a question of survival for his family and he should not be left in a state of uncertainty for a long period. 8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e., whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. ....