# B.S.N.L. & Anr v. Central Govt. Industrial Tribunal Cum Labour Court, Lucknow & Anr

- **Citation:** (2023) 1 ILRA 270
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-05
- **Case number:** Writ-C No. 23459 of 2018
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/b-s-n-l-anr-v-central-govt-industrial-tribunal-cum-labour-court-lucknow-anr-49612
- **Pages:** 8

## Headnote

(A) Civil Law - The Industrial Disputes Act,
1947 - Section 25F - Conditions precedent
to retrenchment of workmen , Section 25B
- 'continuous service' ,Section 25B(2) - if a
workman, during a period of 12 actual
months preceding the date with regard to
which calculation is given - has actually
worked under the employer for 240 days
then
he
will
be
deemed
to
be
in
continuous service for a period of one year
- in case of short working, order of
reinstatement and the back wages would
not be automatic instead workman should
be given monetary compensation to meet
the ends of justice.(Para -23,27 )

Termination
of
workman
took
place
on
01.09.2001 - working considered by Tribunal (as
corrected on 10.09.2018) from December 1999
to December 2000 - services upto 31.08.2001
not considered by Tribunal for calculating
continuous service of workman . (Para -28 )

HELD:-Once the alleged continuous service of
the workman right upto 31.08.2001 has not
been considered by the Tribunal consequently it
cannot be said that the petitioners have violated
the provisions of the Act 1947. Impugned award
set aside. Matter remitted to Tribunal to pass a
fresh order.(Para -28,29 )

Petition Allowed. (E-7)

List of Cases cited:
1 All. B.S.N.L. & Anr. Vs. Central Govt. Industrial Tribunal Cum Labour Court, Lucknow &
 Anr.
271

## Text

270 INDIAN LAW REPORTS ALLAHABAD SERIES
as no hearing can be demanded by the
borrower at this stage. However, it is
clarified that the order passed by such
Magistrate has to be duly served upon the
borrower before taking any steps for his
forcible dispossession by such steps or use
of force, as may be necessary in the opinion
of the Magistrate, and the date fixed for
such forcible action shall be duly intimated
to such borrower in advance giving him
sufficient time to remove his belongings, or
to make alternative arrangement.

53. Lastly, for the ancillary issue
raised by the learned Senior Counsel for the
petitioners about the delay in passing the
order under Section 14 beyond 60 days
being fatal, suffice is to note the decision of
the Apex Court in C. Bright vs. District
Collector and others (supra) wherein it is
held that the District Magistrate does not
become functus officio, if he is unable to
take possession within the time limit. The
remedy under Section 14 of the Act is not
redundant if the District Magistrate could
not adhere to the timeline provided therein.

The challenge to the orders
impugned by the competent Authorities
passed under Section 14 of the SARFAESI
Act, 2002, on the plea of violation of
principles of natural justice, therefore, is
liable to be turned down.

Accordingly, all the connected
writ petitions are dismissed being devoid
of merits.
----------
(2023) 1 ILRA 270
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.01.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-C No. 23459 of 2018

B.S.N.L. & Anr. ...Petitioners
Versus
Central Govt. Industrial Tribunal Cum
Labour Court, Lucknow & Anr.
 ...Respondents

Counsel for the Petitioners:
Rajeev Kumar Sinha

Counsel for the Respondents:
Vikas Misra, Anupriya Srivastava, Jay
Prasad Yadav, Kaushlendra Yadav, Virendra
Kumar Dubey

(A) Civil Law - The Industrial Disputes Act,
1947 - Section 25F - Conditions precedent
to retrenchment of workmen , Section 25B
- 'continuous service' ,Section 25B(2) - if a
workman, during a period of 12 actual
months preceding the date with regard to
which calculation is given - has actually
worked under the employer for 240 days
then
he
will
be
deemed
to
be
in
continuous service for a period of one year
- in case of short working, order of
reinstatement and the back wages would
not be automatic instead workman should
be given monetary compensation to meet
the ends of justice.(Para -23,27 )

Termination
of
workman
took
place
on
01.09.2001 - working considered by Tribunal (as
corrected on 10.09.2018) from December 1999
to December 2000 - services upto 31.08.2001
not considered by Tribunal for calculating
continuous service of workman . (Para -28 )

HELD:-Once the alleged continuous service of
the workman right upto 31.08.2001 has not
been considered by the Tribunal consequently it
cannot be said that the petitioners have violated
the provisions of the Act 1947. Impugned award
set aside. Matter remitted to Tribunal to pass a
fresh order.(Para -28,29 )

Petition Allowed. (E-7)

List of Cases cited:
1 All. B.S.N.L. & Anr. Vs. Central Govt. Industrial Tribunal Cum Labour Court, Lucknow &
 Anr.
271
1. D.D.O. & anr. Vs Satish Kantilal Amrelia ,
(2018) 12 SCC 298

2. Municipal Corp., Faridabad Vs Siri Niwas ,
(2004) 8 SCC 195

3. St. of Uttarakhand & ors. Vs Raj Kumar ,
(2019) 14 SCC 353

4. B.S.N.L. Vs Bhurumal , (2014) 7 SCC 177

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioners and Shri O. P. Srivastava,
learned Senior Advocate, assisted by Shri
Kaushlendra Yadav, learned counsel for the
respondent no. 2.

2. The instant petition has been filed
challenging the judgement and award dated
16.05.2017 published on 03.04.2018, a
copy of which is annexure 1 to the petition.
By the said order the Central Government
Industrial Tribunal cum Labour Court,
Lucknow (hereinafter referred to as the
learned Tribunal) in Industrial Dispute No.
25 of 2003 has held the oral termination
order of the workman Shri Manjeet
Singh/respondent no. 2 (hereinafter referred
to as the workman) with effect from
01.09.2001 to be illegal and unjustified and
he has been directed to be reinstated with
effect from 01.09.2001 alongwith 50% of
the backwages.

3. The case set forth by the petitioners
is that a claim petition was filed before the
learned Tribunal by the workman, a copy
of which is annexure 2 to the petition,
contending that despite he having worked
continuously from 10.12.1998 to January
2000 and thereafter from February 2000 to
May 2000 and from June 2000 to August
2001, his services have been dispensed
with on 01.09.2001. In support of his claim
the workman filed various documents
including the logbooks, the working in the
shape of gate passes and the documents to
show running of the vehicle to prove that
he had worked in the aforesaid period.

4. The claim was contested by the
petitioners herein on various grounds
including the ground that the workman was
not an employee of the B.S.N.L. rather had
been engaged through a contractor and his
working was also disputed.

5. The learned Tribunal by means of
the impugned award was of the view that as
the workman has worked from December
1999 to November 2000 and from June
2000 to December 2000 as such he has
worked for 280 days and 270 days
respectively as per the logbooks, that the
duties performed by the workman have
been
corroborated
by
the
witnesses
adduced before the learned Tribunal and
that the management could not muster the
courage
to
specifically
deny
the
truthfulness
or
authenticity
of
the
documents and consequently directed for
the reinstatement of the workman with
effect from 01.09.2001 alongwith 50% of
the back-wages after holding the oral
termination of the workman to be illegal
and unjustified.

6. Being aggrieved the instant petition
has been filed.

7. Learned counsel for the petitioner
has primarily argued on three grounds
namely:

(a) that the learned Tribunal in
paragraph 21 of its award has indicated that
the workman has worked from December
1999 to November 2000 and from June
2000 to December 2000 and the total
272 INDIAN LAW REPORTS ALLAHABAD SERIES
working has been indicated as 280 days and
270 days but by no stretch of imagination
can the working of the aforesaid period
result in two separate workings of 280 days
and 270 days respectively,

(b) the learned Tribunal has
directed for reinstatement of the workman
without indicating the reasons which have
prevailed upon the learned Tribunal for
directing for reinstatement in as much as it
is settled position of law that reinstatement
of a workman who has worked for only a
short period of time cannot be directed
automatically and

(c) as per Section 25F of the
Industrial Disputes Act, 1947 (hereinafter
referred to as the Act, 1947) the condition
precedent to retrenchment of workmen are
that no workman employed in any industry
who has been in continuous service for not
less than one year under an employer shall
be retrenched while the words ''continuous
service' would mean the service upto the
alleged termination of the workman, in this
case 01.09.2001 meaning thereby that the
continuous working upto 31.08.2001 was to
be considered by the learned Tribunal but
the learned Tribunal has only indicated
about working from December 1999 till
December 2000 and as such the continuous
service upto 31.08.2001 has not even been
considered by the learned Tribunal while
passing the impugned award.

8. Elaborating the same learned
counsel for the petitioner contends that so
far as ground (a) is concerned the learned
Tribunal had suo motu made correction in
the award vide order dated 10.09.2018
which has been brought on record as
annexure CA 1 to the counter affidavit filed
by the workman whereby the period of the
workman now stands corrected to read as
working
from
December
1999
to
November 2000 and from June 2000 to
December 2000 which would also not
correctly render the recording of two
separate workings of 280 days and 270
days respectively and as such it is apparent
that the said number of working days have
erroneously been recorded by the learned
Tribunal
which
reflects
patent
non
application of mind on the part of the
learned Tribunal.

9. So far as ground (b) is concerned,
reliance has been placed on the judgement
of Hon'ble the Apex Court in the case of
District
Development
Officer
and
another vs Satish Kantilal Amrelia
reported in (2018) 12 SCC 298 to argue
that the Apex Court has categorically laid
down that short working of a workman
would not result into an automatic
reinstatement order rather a workman can
always be compensated in terms of money
in case his retrenchment or termination has
been found to be illegal.

10. As regards ground (c) reliance has
been placed on the judgment of Hon'ble the
Apex Court in the case of Municipal
Corporation, Faridabad vs Siri Niwas
reported in (2004) 8 SCC 195 to hold that
the Apex Court has held that the words
''continuous service' are contained in
Section 25B of the Act 1947 and that a
workman has to show his continuous
working during a period of 12 calendar
months preceding the date with reference
to which calculation is to be actually made.

11. On the basis of the aforesaid three
grounds it is contended that the learned
Tribunal has patently erred in law in
passing the impugned award and as such
the impugned award merits to be set aside.

12. On the other hand, Shri O. P.
Srivastava,
learned
Senior
Advocate,
1 All. B.S.N.L. & Anr. Vs. Central Govt. Industrial Tribunal Cum Labour Court, Lucknow &
 Anr.
273
appearing for the respondent no. 1 argues
that before the learned Tribunal various
documents had been placed by the
workman including the logbooks, the
working in the shape of gate passes and
documents indicating the running of the
vehicle which incidentally were never
denied by the management. He argues that
this aspect of the matter has been
considered by the learned Tribunal in
paragraph 21 of its award wherein the
learned Tribunal has categorically held that
the concerned officers of the management
have miserably failed to discharge their
duties and could not muster courage to
specifically
deny
the
truthfulness
or
authenticity of the documents relied upon
by the workman.

13. It is also argued that once all the
documents were available before the
learned Tribunal and the documents were
never denied by the management, as found
specifically recorded in paragraph 20 of the
award of the learned Tribunal, as such,
even if the learned Tribunal has committed
an error in determining the number of days
of working of the workman the same can
not and will not resile from the fact that the
workman has worked from December 1998
to
August
2001
and
as
such
the
presumption is of he having rendered 240
days of service right upto his illegal
termination on 01.09.2001 which would
entitle the workman to being reinstated in
service.

14. So far as the erroneous working
having been indicated by the learned
Tribunal in paragraph 21 of its award, the
argument of learned Senior Advocate is
that before the learned Tribunal, reliance
had been placed on various documents to
indicate the continuous working of the
workman from December 1998 till August
2001 and as such even in case the learned
Tribunal has committed an error while
indicating the working days of the
workman the same cannot be held against
him.

15. As regards of there being no
automatic reinstatement on account of the
short working, learned Senior Advocate has
placed reliance on the judgement of the
Apex Court in the case of State of
Uttarakhand and others vs Raj Kumar
reported in (2019) 14 SCC 353 to contend
that the Apex Court while considering its
earlier judgement in the case of Bharat
Sanchar Nigam Limited vs Bhurumal
reported in (2014) 7 SCC 177 has
categorically laid down a caveat to there
being no automatic reinstatement which
would not be applicable where there could
be cases where daily wager is found to
have been illegally terminated on the
ground of unfair labour practice or in
violation of principles of last come first go
vis a vis the juniors to him being retained in
service or certain juniors having been
regularised and in such circumstances, the
workman can be reinstated despite his short
working.

16. Placing reliance on the averments
contained in the counter affidavit which has
been filed in the instant petition it is
contended that various juniors of the
workman have been regularised in service
and as such there is no error in learned
Tribunal having directed for reinstatement
of the workman.

17. Heard learned counsel for the
parties and perused the record.

18. From the arguments as raised by
learned counsel for the contesting parties
and perusal of record it emerges that the
274 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no. 2 workman filed an
application before the learned Tribunal
contending that he has been illegally
terminated from service on 01.09.2001. He
claimed benefit of the provisions of Act
1947. Further he filed various documents
before the learned Tribunal including
logbooks, his working in the shape of gate
passes and various other documents to
show that he was driving a vehicle on
behalf of the petitioners. He claimed
continuous working from 10.12.1998 till
the
alleged
illegal
termination
on
01.09.2001. The petitioners contested the
claim and denied that there was continuous
working of the workman or for that matter
the workman was an employee of the
petitioners rather they contended that he
had been engaged through a contractor.

19. The learned Tribunal after
considering the documents on record and
also considering that there was no rebuttal
on the part of the petitioners of the said
documents, was of the view that as the
workman has worked from December 1999
to December 2000 and from June 2000 to
December 2000 as such his workings is 280
days and 270 days and thus would be
entitled for the benefit of the provisions of
the Act 1947 in as much as the working
was more than 240 days in a year and thus
the oral termination on 01.09.2001 cannot
be said to be legal and justified and thus by
means of the impugned award directed for
reinstatement of the workman with effect
from 01.09.2001 alongwith 50% of the
back wages.

20. Challenging the award the first
ground which has been taken by the
petitioners is that the learned Tribunal after
considering the working of the workman
including
the
logbooks
and
other
documents was of the view that the
workman has worked from December 1999
to November 2000 and from June 2000 to
December 2000 and his working has been
indicated to be 280 days and 270 days i.e.
more than 240 days but even if on the face
of the working, as recorded by the learned
Tribunal, the period from December 1999
to November 2000 and from June 2000 to
December 2000 is to be counted at most it
may amount to 280 days but by no stretch
of imagination would the other period of
working
i.e.
270
days
emerge
and
consequently there has been patent non
application of mind on the part of the
learned Tribunal.

21. While examining the said ground
what the Court finds is that learned
Tribunal has specifically recorded the
working of the workman from December
1999 to November 2000 and from June
2000 to December 2000 and the total
working has been indicated as 280 and 270
days. The award has been corrected suomotu by the learned Tribunal vide its order
dated 10.09.2018 whereby the working
now reads as December 1999 to November
2000 and from June 2000 to December
2000. Even if the working, as corrected by
the learned Tribunal through the order
dated 10.09.2018 is seen at its face value
by no stretch of imagination can it be said
that the same would result in separate days
of working i.e. 280 days and 270 days as
has been recorded by the learned Tribunal
as there is clear overlapping of the period
of working / double counting from June
2000 to November 2000. Needless to
mention that the said working has been
recorded by the learned Tribunal on the
basis of the documents as were before it.
Considering there is a fallacy in recording
of the said dates and clear double counting
as such the first ground taken by the
petitioner while challenging the impugned
1 All. B.S.N.L. & Anr. Vs. Central Govt. Industrial Tribunal Cum Labour Court, Lucknow &
 Anr.
275
awarded finds favour with this Court and
this Court records that there being patent
non application of mind on the part of the
learned Tribunal while recording the
number of days of working by the
workman.

22. So far as the second ground taken
by the petitioners is concerned i.e. the
learned Tribunal having directed
for
reinstatement of the workman without
indicating the reasons thereto, reliance has
been placed upon the judgement of Hon'ble
the Apex Court in the case of Satish
Kantilal Amrelia (supra). The Apex
Court in the said judgement has held as
under :

"12. Having gone through the
entire record of the case and further keeping
in view the nature of factual controversy,
findings of the Labour Court, the manner in
which the respondent fought this litigation on
two fronts simultaneously, namely, one in
Civil Court and the other in Labour Court in
challenging his termination order and
seeking regularization in service, which
resulted in passing the two conflicting orders
- one in respondent's favour (Labour Court)
and the other against him (Civil Court) and
lastly, it being an admitted fact that the
respondent was a daily wager during his
short tenure, which lasted hardly two and
half years approximately and coupled with
the fact that 25 years has since been passed
from the date of his alleged termination, we
are of the considered opinion that the law
laid down by this Court in the case of Bharat
Sanchar Nigam Limited vs Bhurumal [(2014)
7 SCC 177] would aptly apply to the facts of
this case and we prefer to apply the same for
disposal of these appeals.

13. It is apposite to reproduce
what this Court has held in the case of
Bharat Sanchar Nigam Limited (supra):

"33. It is clear from the reading
of the aforesaid judgments that the
ordinary principle of grant of reinstatement
with full back wages, when the termination
is found to be illegal is not applied
mechanically in all cases. While that may
be a position where services of a
regular/permanent
workman
are
terminated illegally and/or mala fide
and/or by way of victimisation, unfair
labour practice, etc. However, when it
comes to the case of termination of a dailywage worker and where the termination is
found illegal because of a procedural
defect, namely, in violation of Section 25-F
of the Industrial Disputes Act, this Court is
consistent in taking the view that in such
cases reinstatement with back wages is not
automatic and instead the workman should
be given monetary compensation which will
meet the ends of justice. Rationale for
shifting in this direction is obvious.

34. The reasons for denying the
relief of reinstatement in such cases are
obvious. It is trite law that when the
termination is found to be illegal because
of
non-payment
of
retrenchment
compensation
and
notice
pay
as
mandatorily required under Section 25-F of
the Industrial Disputes Act, even after
reinstatement, it is always open to the
management to terminate the services of
that
employee
by
paying
him
the
retrenchment compensation. Since such a
workman was working on daily-wage basis
and even after he is reinstated, he has no
right to seek regularisation [see State of
Karnataka v. Umadevi (3)17]. Thus when
he cannot claim regularisation and he has
no right to continue even as a daily-wage
worker, no useful purpose is going to be
served in reinstating such a workman and
he can be given monetary compensation by
the Court itself inasmuch as if he is
terminated again after reinstatement, he
276 INDIAN LAW REPORTS ALLAHABAD SERIES
would receive monetary compensation only
in the form of retrenchment compensation
and notice pay. In such a situation, giving
the relief of reinstatement, that too after a
long gap, would not serve any purpose.

35. We would, however, like to
add a caveat here. There may be cases
where termination of a daily-wage worker
is found to be illegal on the ground that it
was resorted to as unfair labour practice or
in violation of the principle of last come
first go viz. while retrenching such a
worker daily wage juniors to him were
retained. There may also be a situation that
persons junior to him were regularised
under some policy but the workman
concerned
terminated.
In
such
circumstances,
the
terminated
worker
should not be denied reinstatement unless
there are some other weighty reasons for
adopting
the
course
of
grant
of
compensation instead of reinstatement. In
such cases, reinstatement should be the
rule and only in exceptional cases for the
reasons stated to be in writing, such a relief
can be denied."

23. From perusal of the aforesaid
judgement it emerges that the Apex Court
has categorically held that where there is a
short working of the workman (in the case
of Satish Kantilal Amreila the working was
2 and 1/2 years) then the law laid down by
the Apex Court in the case of Bhurumal
(supra) would be applicable i.e. in case of
short working, order of reinstatement and
the back wages would not be automatic
instead workman should be given monetary
compensation to meet the ends of justice.

24. Here the Court may hasten to add
that the learned Senior Advocate for the
respondents has placed reliance on the
judgement of the Apex Court in the case of
Rajkumar (supra) which was passed
considering the earlier judgement of the Apex
Court in the case of Bhurumal (supra) to
argue that as juniors to the workman have
been regularised in services as such there is
no error in the learned Tribunal having
directed for reinstatement of the workman.

25. The said argument of learned Senior
Advocate is attractive on the face of it but
what the Court finds is that learned Tribunal
while directing for reinstatement of the
workman has not considered that the alleged
juniors of the workman have been regularised
in service or retained in the service rather the
learned Tribunal, upon finding the alleged
termination to be illegal, has directed for
automatic reinstatement of the workman.
Even if considering the alleged working of
the workman, as per his case before the
learned Tribunal of he having worked
continuously from 10.02.1998 to August
2001 the same would amount to alleged
working of 2 years and 8 months and
consequently the law laid down in the case of
Satish Kantilal Amrelia (supra) would be
squarely applicable in as much as there would
not be automatic reinstatement on the short
working of the workman. Thus this ground
taken by the petitioners also finds favour with
the Court.

26. As regards the third ground taken
by the petitioners for challenging the award
of the learned Tribunal that there has been no
continuous service of the workman prior to
his alleged termination, the Court would now
consider the judgment of Hon'ble the Apex
Court in the case of Siri Niwas (supra) over
which reliance has been placed by the learned
counsel for the petitioners. In the case of Siri
Niwas (supra) the Apex Court has held as
under:

"For the said purpose it is
necessary to notice the definition of
1 All. Basoo Yadav Vs. Union of India & Ors.
277
'Continuous Service' as contained in Section
25-B of the Act. In terms of sub-Section (2) of
Section 25-B that if a workman during a period
of twelve calendar months preceding the date
with reference to which calculation is to be
made, has actually worked under the employer
240 days within a period of one year, he will be
deemed to be in continuous service. By reason
of the said provision, thus, a legal fiction is
created. The retrenchment of the respondent
took place on 17.5.1995. For the purpose of
calculating as to whether he had worked for a
period of 240 days within one year or not, it
was, therefore, necessary for the Tribunal to
arrive at a finding of fact that during the period
between 5.8.1994 to 16.5.1995 he had worked
for a period of more than 240 days. As noticed
hereinbefore, the burden of proof was on the
workman. From the Award it does not appear
that the workman adduced any evidence
whatsoever in support of his contention that he
complied with the requirements of Section 25-B
of the Industrial Disputes Act. Apart from
examining himself in support of his contention
he did not produce or call for any document
from the office of the Appellant herein including
the muster rolls. It is improbable that a person
working in a Local Authority would not be in
possession of any documentary evidence to
support his claim before the Tribunal. Apart
from muster rolls he could have shown the
terms and conditions of his offer of appointment
and the remuneration received by him for
working during the aforementioned period. He
even did not examine any other witness in
support of his case."

27. From a perusal of the judgement of
Siri Niwas (supra) it emerges that Hon'ble the
Apex Court while considering the definition of
the words "continuous service" has considered
Section 25B of the Act 1947 and has held that
in terms of sub Section (2) of Section 25B of
the Act 1947 if a workman, during a period of
12 actual months preceding the date with
regard to which calculation is given, has
actually worked under the employer for 240
days then he will be deemed to be in continuous
service for a period of one year.

28. In this case the alleged termination of
the workman took place on 01.09.2001 while his
working has been considered by the learned
Tribunal (as corrected on 10.09.2018) from
December 1999 to December 2000 meaning
thereby that the services upto 31.08.2001 have
not been considered by the learned Tribunal for
calculating the continuous service of the
workman. Thus once the alleged continuous
service of the workman right upto 31.08.2001
has not been considered by the learned Tribunal
consequently it cannot be said that the petitioners
have violated the provisions of the Act 1947.
Thus this ground also finds favour of the Court.

29. Keeping in view the aforesaid
discussion, the writ petition is allowed. The
impugned award dated 16.05.2017 published
on 03.04.2018, a copy of which is annexure 1 to
the petition, is set aside. The matter is remitted
to the learned Tribunal to pass a fresh order on
merits. As the matter is pending since long as
such let an order be passed within a period of
six months from the date of receipt of certified
copy of this order after hearing all the parties
concerned.
----------
(2023) 1 ILRA 277
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE AJIT SINGH, J.

Writ-C No. 29605 of 2022

Basoo Yadav ...Petitioner
Versus
Union of India & Ors. ...Respondents