Singh & Ors Vs. The Railway Emp. Cooperative Banking Society Ltd.& Anr
 Insc 112 (24
Sabharwal & B.N. Agrawal. Y.K. Sabharwal, J.
appellants are the employees. The first respondent is the employer.
termination of services of the appellants was held to be illegal and the first
respondent was directed to reinstate them in service with all consequential reliefs
in terms of the order made by the prescribed authority constituted under the
Rajasthan Shops and Commercial Establishments Act, 1958 (Act No.31 of 1958)
(for short, ' the Act').
petitions filed by the first respondent were dismissed by a learned Single
Judge of the High Court, inter alia, holding that the prescribed authority
after elaborate consideration of evidence has rightly come to the conclusion
that the employees had been working continuously for six months.
Division Bench of the High Court by the impugned judgment has allowed the
appeals and set aside the judgment of the Single Judge as also the order made
by the prescribed authority on the ground that pre-condition for invoking
Section 28-A of the Act has not been established and, therefore, appellants
could not make a complaint before the prescribed authority challenging the
termination of their services. The employees are in appeal on grant of leave.
only point for consideration is whether the appellants were in continuous
employment for a period of not less than six months before termination of their
28-A of the Act, inter alia, provides that no employer shall dismiss or
discharge from his employment any employee who has been in such employment
continuously for a period of not less than six months except for a reasonable
cause and after giving such employee at least one month's prior notice or on
paying him one month's wages in lieu of such notice. The case of the
employer/first respondent before the prescribed authority was that the
employees had not been in employment for a continuous period of six months as
there was a break of about two months in their service, their services having
been terminated on 20th
August, 1992 and they
were again re-employed in October, 1992. This case set up by the first
respondent has not been accepted even by the Division Bench while coming to the
conclusion that the employees have not been in continuous employment for a
period of not less than six months. The Division Bench has reached the said
conclusion by holding that there was a break of service for four days, namely
from 16th July, 1992 to 19th July, 1992. The Division Bench held that their was hiatus of four days
between employment under letter dated 16th June, 1992 and new appointment by
letter dated 19th July, 1992. The impugned judgment concludes that :
the absence of any material and objection to term of employment dated 16.6.1992
and to the automatic end of service stipulated under the letter of appointment
dated 16.6.1992 on 15.7.1992, and fresh employment, which only continued upto
the alleged date of termination came, into effect only on 20.7.1992, there was
no continuity of service between 15.7.1992 to 20.7.1992 or to wit the
applicants were not in the employment of society on any view of the matter on
16.7.92, 17.7.92, 18.7.92 and 19.7.92. Thus, the order of the Authority under
the Act suffered from an error of law as well as of fact on the question of
'continuous employment for not less than six months' which is apparent from
record." The case of the appellants before the prescribed authority was
that they had been getting regular salary from June 1992 and worked
continuously upto 31st December, 1992 on the post of Peon in the office of the
first respondent; they marked their attendance upto 7th December, 1992 but
thereafter though they worked upto 31st December but were not allowed to mark
the attendance and on 1st January, 1993, the employer refused to take them on
duty and terminated their services by an oral order without giving one month's
notice and compensation for retrenchment and that they worked for a period of more
than six months from the date of their appointment. It is not in dispute that
the appellant Daulat Singh was appointed as a casual labour in terms of
appointment dated 16th
June, 1992. It was a
temporary appointment for specific period of one month from 16th June, 1992 to 15th July, 1992. The Division Bench has noticed that the actual date of
commencement of employment has not been disputed by the employer but the
employer has alleged that the services came to an end on 20th August, 1992 and no attendance was marked after
the said date. An appointment letter dated 19th July, 1992 in the case of appellant Daulat
Singh has been reproduced in the impugned judgment. Admittedly, the case of
other two appellants is similar. The appointment letter dated 19th July reads
as under :
EMPLOYEES CO-OPERATIVE BANK SOCIETY LTD., JODHPUR.
Dated 19.7.92 Shri Daulat Singh Sankhala, S/o Shri Durga Singh Ji Sankhla,
Outside Chandpole Gate, Near Vidhyashala School, JODHPUR.
Appointment as a Peon in this Society.
result of selection held in the office of the society today, you have been
found to have passed the selection for the post of Peon in the grade 750-940
with usual allowances as admissible to other staff of the society from time to
time w.e.f. 20.7.92.
will be deemed to have been confirmed in the grade on completion of your 50
days service from the initial date of your joining as casual labour in the
office of the society, provided there is no complaint and/or adverse report
against you during this period of 50 days.
HONORARY SECRETARY Copy Received.
DAULAT SINGH SANKHLA ) Dated : 19.7.92" On the basis of the aforesaid
letter, the Division Bench has held that the new appointment was offered w.e.f.
20th July, 1992., and the earlier appointment under appointment letter dated
16th June, 1992 came to an end on 15th July, 1992 and, thus, there was a break
of four days from 16th July to 19th July and, therefore, there is apparent
error in the judgment of learned Single Judge and in the order of the
prescribed authority in coming to the conclusion that the employees were in
continuous employment for a period of not less than six months. The Division
Bench, it is evident, lost sight of the second paragraph of the aforesaid
letter which stipulates the confirmation of the services of the employees from
the initial date of joining as casual labour provided there is no complaint
and/or adverse report against the employee during the period of 50 days. It is
not in dispute that the initial date of joining as casual labour was 16th June, 1992. It has also been established that
on completion of satisfactory work for 50 days, confirmation orders were
issued. One such order dated 5th August, 1992
has been placed on record. The issue of the said letter is also not in dispute.
prescribed authority, on detailed examination of evidence, oral as also
documentary including the appointment letters, the attendance register, payment
of salary etc., came to the conclusion that the employer had failed to prove
that the services of the employees have been terminated on 20th August, 1992
and that employees had proved that they continued in service upto December,
1992 and had completed services with the first respondent for a period of not
less than six months. The issue 'whether applicant did not complete six months'
service continuously in non-applicant society', therefore, suit is not
maintainable' was answered by the prescribed authority in favour of the
employees. The plea of the first respondent that the employees were reappointed
in October, 1992 was not accepted by the prescribed authority. The complaint
under Section 28-A was held to be maintainable and as earlier noticed, the writ
petition of employer was dismissed.
stage, the first respondent took the plea that there was break of service of
the appellants in July 1992. The only basis on which the order of the
prescribed authority and the judgment of the Single Judge were reversed by the
impugned judgment was break in service for four days in July, 1992. Apart from
the fact that the plea that the employees being not in continuous service for
six months was not based on break of their service for these four days, even
otherwise the conclusion of the Division Bench was contrary to the terms of the
letter of initial appointment, letter of appointment after selection and the
letter of confirmation of service. According to the appointment letter dated 19th July, 1992, the employees were deemed to be in
service from the date of their initial appointment as a casual labour, i.e.
since 16th June, 1992.
counsel for the respondent contends that in the complaint as also in evidence,
the employees themselves stated that the first appointment was made on 19th July, 1992 and, therefore, it is evident that
the employees had not completed six months' continuous service. That is not the
ground on which the Division Bench has reversed the judgment of learned Single
Judge. Moreover, the pleadings and the evidence cannot be construed in a hyper
technical manner as sought to be contended by learned counsel for the
employees. True, the employees stated about their first appointment on 19th
July, 1992 but a perusal of the appointment letter clearly shows that the
reference by the employees to the appointment on 19th July is to their regular
appointment after due selection. The stand of the parties was clear before the
prescribed authority, the learned Single Judge as also the Division Bench. The
stand of the employees in substance was that they were in continuous employment
since 16th June, 1992 till December 1992. The stand of
the employer was that there was a break for a period of two months from 20th
August to October, 1992. On consideration of evidence the stand of employees
was accepted and that of employer rejected. Under these circumstances, we are
unable to sustain the conclusion of the Division Bench that there was break of
service of four days and on that ground the complaint under Section 28-A of the
Act was not maintainable since the said provision requires a continuous
employment for six months and the continuity would be broken as a result of
hiatus of four days.
has been placed by Mr.Jain, learned counsel of the employer on a decision of
this Court in Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen [(1964) 3
SCR 616] for the proposition that the service for the period prior to issue of
appointment letter dated 19th July, 1992, could not be taken into
consideration. In the cited decision, it was not disputed that the period of
the former employment under the company could not be taken into consideration
in computing the period because it was common ground that the reappointment of
the employees was a fresh employment. The present case is just reverse. The
appointment in terms of the letter of appointment dated 19th July, 1992 itself postulates continuity from 16th June, 1992. It was never the case of the
employer that for computing six months' service, the starting point of service
was 20th July, 1992 and not 16th June, 1992. We cannot permit the employer to set up a new case at this
stage. The cited decision has no applicability to the case in hand.
the learned Division Bench committed serious illegality in reversing the
finding of fact recorded by the prescribed authority affirmed by the learned
Single Judge on a point that was not pleaded by the employer at any stage and
was even otherwise untenable.
the aforesaid reasons, we set aside the impugned judgment and restore the
judgment of the learned Single Judge confirming the orders of the prescribed
authority. The appeals are, thus, allowed with costs.