# Chhote Lal v. Regional Manager, Bank of Baroda and others

- **Citation:** (2009) 1 ILRA 198
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-02
- **Case number:** Civil Misc. Writ Petition No. 28040 of 2004
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhote-lal-v-regional-manager-bank-of-baroda-and-others-41344
- **Pages:** 4

## Headnote

Industrial Dispute Act, 1947-Section 25F-Retrenchment
compensation-denied
by Tribunal-workman worked only 222
days-240 days to be calculated from the
date
of
termination
after
joining
backwards to 12 months-falure of such
consideration-held-
illegal-matter
remitted
to
back
for
fresh
reconsideration.

Held: Para 9

In the light of the aforesaid judgment,
the Industrial Tribunal is required to
calculate 240 days starting from the date
of the termination and going backwards
12 months which has not been done.
This calculation is required to be based
on the basis of the payment vouchers
issued by the bank and such other
evidence which the parties may placed
before the Tribunal.
Case law discussed:
AIR 1981 SC 1253
1 All] Chhote Lal V. Regional Manager, Bank of Baroda and others

199

## Text

198 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

cement and iron rods not been used in the
construction of building of Vikas Bhawan
It is alleged that the payment of the high
quantity of cement and iron has been
made whereas such quantity was not used
in construction of the building for which
the forged records has also been prepared
even some of the record has been
misplaced. The I.O. has recorded the
statement of the witnesses and collected
the material which prima facie discloses
the commission of the offence and for the
purpose of the prosecution the sanction
has
also
been
obtained
from
the
authorities concerned. The I.O. has not
committed any error in submitting the
charge sheet dated 31.5.2008 which
discloses the commission of the offence.
The
learned
Special
Judge
Anti
Corruption has also not committed any
error in taking the cognizance vide order
dated 2.2.2008. The charge sheet has been
submitted on 31.05.2007 in respect of the
incident which had occurred in the year
1998. On the ground of delay of
submission of charge sheet after the
retirement of the applicant is not a proper
ground for quashing the charge sheet.
There is no illegality in submission of the
charge sheet, therefore, the prayer for
quashing the same is refused.

7. However, considering the old age
of the applicant, it is directed that
applicant shall appear before the court
concerned within 30 days from today, in
case he applies for bail, the same shall be
heard and disposed of expeditiously, if
possible on the same day by the court
concerned thereafter in case the applicant
moves discharge application before the
court concerned, the same may be heard
and
disposed
expeditiously
of
in
accordance with the provisions of law.

8. With the above directions, this
application is finally disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2009

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 28040 of 2004

Chhote Lal

...Petitioner
Versus
Regional Manager, Bank of Baroda, Bareilly
Region, Bareilly & others ...Respondents

Counsel for the Petitioner:
Sri Kuldeep Jauhri
Sri Dharmendra Singh

Counsel for the Opposite Parties:
Sri Vipin Sinha
Sri Ashish Srivastava
Sri K.C. Sinha

Industrial Dispute Act, 1947-Section 25F-Retrenchment
compensation-denied
by Tribunal-workman worked only 222
days-240 days to be calculated from the
date
of
termination
after
joining
backwards to 12 months-falure of such
consideration-held-
illegal-matter
remitted
to
back
for
fresh
reconsideration.

Held: Para 9

In the light of the aforesaid judgment,
the Industrial Tribunal is required to
calculate 240 days starting from the date
of the termination and going backwards
12 months which has not been done.
This calculation is required to be based
on the basis of the payment vouchers
issued by the bank and such other
evidence which the parties may placed
before the Tribunal.
Case law discussed:
AIR 1981 SC 1253
1 All] Chhote Lal V. Regional Manager, Bank of Baroda and others

199
(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Dharmendra Singh,
holding the brief of Sri Kuldeep Jauhari,
the learned counsel for the petitioner and
Sri Ashish Srivastava, holding the brief of
Sri Vipin Sinha, the learned counsel for
the respondent bank.

2. The petitioner has challenged the
validity and legality of the award whereby
his claim with regard to the validity of his
order of termination was rejected by the
Industrial Tribunal, New Delhi. The facts
leading to the filing of the writ petition is,
that the petitioner was appointed as a
peon allegedly w.e.f. 10.6.1991 and
worked for a limited period of time and
thereafter his services was dispensed with.
It is alleged that the petitioner was reengaged and eventually worked till
14.11.1994
when
his
services
was
terminated without any prior notice. The
petitioner contended that he had worked
for more than 240 days in a calendar year
and, therefore, his services could not be
terminated without complying with the
mandatory provisions of issuing notice
and
payment
of
retrenchment
compensation which had not been done.

3. The petitioner being aggrieved by
his alleged termination of services, raised
a dispute which was referred by the
Ministry of Labour to the Industrial
Tribunal, in the year 1997. Before the
Tribunal the employers, namely, the bank,
denied the claim of the petitioner and
submitted that he had never worked as a
permanent peon nor had he completed
240 days in a calender year.

4. The Industrial Tribunal after
considering the evidence on record passed
an award dated 23.2.2004 rejecting the
claim of the petitioner holding that the
workman had not worked for 240 days in
a calender year and therefore, the
provision of Section 25-F of the Industrial
Disputes Act was not attracted and that
the petitioner was not entitled for the
payment of retrenchment compensation,
etc. The petitioner, being aggrieved, has
filed the present writ petition.

5. Heard the learned counsel for the
parties.

6. A perusal of the written statement
and the rejoinder statement filed by the
petitioner indicates the number of days
which the petitioner had worked from
1991 till the date of his alleged
termination, i.e., 14.11.1994. Further, the
rejoinder affidavit indicates not only the
number of days which he had worked but
also indicates the payment which he had
received from the employer for the
number of days the petitioner had worked.
A perusal of paragraph 13 of the rejoinder
of the workman filed before the Tribunal
indicates that he had worked for 295 days
from 8.12.1993 to 14.11.1994. The
workman
has
alleged
in
the
said
paragraph that not only he had worked for
those days but was also paid and that the
statement is based on the basis of the
payment vouchers.

7. In spite of this specific averment
being made by the petitioner, the Tribunal
has given a finding that the petitioner has
worked for 202 days between November,
1993 to October 1994 which apparently
appears to be based on surmises and
conjectures. The conclusion drawn by the
Tribunal does not appear to be borne out
from the records. It appears that the
finding of having worked for less than
240 days is made on the basis that 12
200 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

calender months has to be calculated from
1st January to 31st December. In my
opinion, this basis is patently erroneous.

8. In Mohan Lal vs. The
Management of M/s Bharat Electronics
Ltd., AIR 1981 SC 1253, the Supreme
Court held that 240 days in a calender
year has to be counted starting from the
date of termination and then counting 12
months backwards and if the workman
had worked for 240 days in those 12
months in that event, by a deeming
eviction, the workman would be deemed
to be in continuous service of one year.
The Supreme Court held-

"14. We have already extracted
Section 25B since its amendment and the
change in language is the legislative
exposition of which note must be taken. In
fact, we need not further dilate upon this
aspect because in Surendra Kumar Verma
v. Central Government Industrial-cumLabour Court, New Delhi, (1980) 4 SCC
443 : (AIR 1981 SC 422) Chinnappa
Reddy, J., after noticing the amendment
and referring to the decision in Sur
Enamel and Stamping Works (P) Ltd.
case (AIR 1963 SC 1914) held as under
(at p. 426 of AIR) :

"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 a concurring judgment Pathak J.
agreed with this interpretation of Section
25B (2). Therefore, both on principle and
on precedent it must be held that Section
25B (2) comprehends a situation where a
workman is not in employment for period
of 12 calendar months but has rendered
service for a period of 240 days within the
period
of
12
calendar
months
commencing and counting backwards
from the relevant date, i. e. the date of
retrenchment. If he has. he would be
deemed to be in continuous service for a
period of one year for the purpose of
Section 25B and Chapter VA."

9. In the light of the aforesaid
judgment, the Industrial Tribunal is
required to calculate 240 days starting
from the date of the termination and going
backwards 12 months which has not been
done. This calculation is required to be
based on the basis of the payment
vouchers issued by the bank and such
other evidence which the parties may
placed before the Tribunal.

10. In view of the aforesaid, the
award of the Tribunal is manifestly
erroneous in law and cannot be sustained
and is quashed. The writ petition is
allowed. The matter is remitted again to
the Industrial Tribunal with a direction to
re-decide the matter within a period of six
months from the date of the production of
a certified copy of this order.
---------
1 All] D.A.V. Public School, Meerut V. P.A. (Minimum Wages Act) 1948 and others

201
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2009

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 29644 of 2006

D.A.V. Public School (U.P.) Meerut

 ...Petitioner
Versus
Prescribed Authority (Minimum Wages Act)
1948/ Assistant Labour CommissionerBijnor and others

 ...Respondents

Counsel for the Petitioner:
Sri Vijay Bahadur Singh
Sri Ashok Kumar Lal
Sri Shakti Swarup Nigam

Counsel for the Respondents:
Sri Arun Kumar Singh
S.C.

Industrial Dispute Act, 1947-Section 22C (2)-claim for arrear of wages-workman
already drawing more than 1600/- per
month-direction for payment of arrears
of
salary
Vth pay commission and
imposition
by
fine
as
per
beyond
jurisdiction.

Held: Para 8

Moreover by virtue of Section 1(6) of
Payment of Wages Act an employee
drawing more than Rs.1600/- per month
cannot make any claim under the said
Act. Not only the claimed per month
wages but even the per month wages
actually paid to respondent No.2 were
more than Rs.1600/-
Case law discussed:
2006 (109) FLR 1101, 1992 (2) U.P.L.B.E.C.
1472, 2008 AIR SCW 7233, AIR 2006 SC 1581,
2007 (113) FLR 50 : 2007 (2) ADJ 25 (SC),
2006 (10) SCC 211.

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard learned counsel for the
parties.

2. Respondent No.2, Arun Kumar
was an employee of petitioner school. His
services were terminated on 31.03.2001.
Thereafter, on 23.06.2004, he filed an
application before Prescribed Authority
under Payment of Wages Act, 1936,
which was registered as P.W.A. Case
No.60 of 2004. In the said application, he
claimed that from 13.04.1991, he was
appointed as O.S.D. in the petitioner
school and he was paid less wages than
the wages required to be paid in
accordance with the recommendations of
V Pay Commission w.e.f. 01.04.1996. It
was stated that the difference came to
Rs.6,75,918/- (about Rs.6,80,000/-). Ten
times compensation was also claimed.

3. It has been held in U.P. Basic
Parishad, Allahabad Vs. Prescribed
Authority under Payment of Wages
Act, 2006 (109) FLR 1101 and R.D.S.O.
Basic School Vs. Prescribed Authority,
1992 (2) U.P.L.B.E.C. 1472 that Payment
of Wages Act, 1936 is not applicable to
educational institutions.

4. Through order dated 20.12.2004,
Prescribed Authority under Payment of
Wages Act condoned the delay. The only
ground mentioned in the said order for
condoning the delay was that since
September,
2001
till
March,
2004,
respondent No.2 gave several applications
to the management. This is absolutely no
ground for condoning the delay. In any
case for delay since 1996 till 2001 when
services
of
respondent
No.2
were
terminated, there was absolutely no
explanation.
Against
order
dated