Delhi High Court
Sports Authority Of India vs Santosh Kr.Nagina(Decd.)Thr.Lr’S on 9 July, 2026
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 07th May, 2026
Date of Decision: 09th July, 2026
Uploaded on: 09thJuly, 2026
+ W.P.(C) 877/2004 & CM APPL. 813/2004
SPORTS AUTHORITY OF INDIA .....Petitioner
Through: Ms. Ginny Jetley Rautray and Ms.
Yashika, Advs.
versus
SANTOSH KR.NAGINA(DECD.)THR.LR'S .....Respondent
Through: None
CORAM:
HON'BLE MS. JUSTICE SHAIL JAIN
JUDGMENT
SHAIL JAIN, J.
1. The present Petition has been filed under Article 226 of the
Constitution of India, inter alia, wherein the Petitioner has challenged the
Award dated 08 January 2003 passed by the learned Labour Court No. X,
Delhi, in Industrial Dispute No. 498 of 1995, wherein the learned Labour
Court held that the Respondent was a “Workman” and had completed 240
days of continuous service with the Management and was, therefore,
entitled to the protection of Section 25F of the Industrial Disputes Act,
1947 (hereinafter referred to as ‘the Act’).
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FACTS OF THE CASE
2. The brief factual background leading to the filing of the present
Petition is set out hereunder-
a. The Petitioner herein is the Sports Authority of India (hereinafter,
“the Petitioner”), a society registered under the Societies Registration
Act, 1860, and wholly financed by the Central Government through the
Ministry of Youth Affairs and Sports. The Petitioner is governed by its
Rules and Memorandum of Association and comprises, inter alia, the
Prime Minister of India as its President, the Union Minister in charge of
Sports as its ex officio Vice-President, and various Union Ministers and
other nominated members as part of its governing structure.
b. The dispute pertains to Late Shri Santosh Kumar Nagina
(hereinafter, “the Workman”), whose legal representative, Smt. Praveen
Nagina has been impleaded in the present proceedings. According to the
Petitioner, the Workman was appointed as a Supervisor on an ad hoc
and contractual basis from time to time. The Petitioner asserts that the
Workman accepted each such appointment without objection and with
full knowledge of its temporary and contractual nature.
c. The Petitioner herein has specifically relied upon various
appointment letters and office orders issued from time to time in relation
to the Workman. It is stated that the last appointment letter was issued
on 22 December 1989, whereby the Workman was appointed for the
period commencing from 11 December 1989 on a consolidated salary
of Rs. 1,800/- (Rupees Eighteen Hundred only) per month. The
Petitioner contends that all appointments of the Workman were
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temporary, contractual and for specified periods, and that such
appointments did not confer any right to regular appointment.
d. Consequently, the services of the Workman came to an end with
effect from 24 January 1990. Aggrieved by the cessation of his
employment, the Workman raised an industrial dispute before the
labour authorities.
e. The dispute was thereafter referred by the Government of the
National Capital Territory of Delhi for adjudication to the Labour Court
No. X vide Order No. F.24(2105)/92-Lab. dated 15 July 1992, the
reference question being-
“Whether the services of S. Santosh Kumar Nagina have been
terminated illegally and or unjustifiably by the management and
if so, to what relief is he entitled and what directions are
necessary in this respect?”
f. Before the Labour Court, the Workman pleaded that he had been
employed as a Supervisor with effect from 04 March 1987 and was
drawing wages of Rs.1,800/- (Rupees Eighteen Hundred only) per
month. He asserted that, despite the designation of Supervisor, the
duties performed by him were clerical and manual in nature, including
liaison work, maintenance of accounts, operation and maintenance of
the electronic touch pad system and touch board. According to the
Workman, the Management had been giving artificial breaks in service
and, when he demanded regular pay scales and protested against such
breaks, his services were terminated on 24 January 1990 without
payment of wages for January 1990. He contended that the termination
was illegal and violative of Section 25F of the Industrial Disputes Act,
1947 and sought reinstatement with full back wages.
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g. According to the Petitioner, the Statement of Claim neither alleged
that the Workman had completed 240 days of continuous service nor
disputed the contractual nature of his appointment.
h. In its Written Statement, the Petitioner also raised a preliminary
objection that the Respondent, having been appointed as a Supervisor
on a contractual basis, did not fall within the definition of a “workman”
under Section 2(s) of the Industrial Disputes Act, 1947. The Petitioner
also challenged the validity of the reference on the ground that the
Sports Authority of India is a society established and controlled by the
Government of India through the Department of Youth Affairs and
Sports and relied upon its Memorandum of Association and the
evidence of its management witness in support thereof.
i. In turn, the Workman, in his affidavit, stated that he was engaged in
liaison work, maintenance of accounts relating to admissions under
regular and pay-and-play schemes, making arrangements for camps,
and overseeing cleanliness and security arrangements at the stadium.
j. Relying upon these assertions, as well as the testimony of its
Management witness that approximately eleven to twelve workers were
working under the Workman/ Respondent’s supervision, the Petitioner
maintained that the duties performed by him were supervisory in nature.
It was further submitted that, although the Workman denied performing
supervisory and liaison functions during cross-examination, the Labour
Court failed to consider the admissions contained in his affidavit.
k. Upon consideration of the material on record, the Labour Court
passed the impugned Award dated 08 January 2003 in favour of the
Workman. The Labour Court held that the Workman had completed 240
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days of continuous service with the Management and was, therefore,
entitled to the protection of Section 25F of the Industrial Disputes Act,
1947. The Labour Court further observed that the first appointment
letter did not indicate appointment for a specific period and that the
subsequent short breaks in service constituted an unfair labour practice
on the part of the management.
l. Aggrieved by the said findings and the Award dated 08 January
2003, the Petitioner has preferred the present writ petition under Articles
226 and 227 of the Constitution of India seeking quashing and setting
aside of the impugned Award.
3. In addition to the aforesaid, the grounds set out hereunder have been
relied upon by the Petitioner in respect of the reliefs claimed by the
Petitioner.
a. The Petitioner contends that the Labour Court erred in holding the
Respondent to be a “workman” under Section 2(s) of the Industrial
Disputes Act, 1947, despite the evidence on record indicating that he
was discharging supervisory functions. Reliance is placed upon the
Respondent’s affidavit, wherein he stated that he was engaged in liaison
work, camp arrangements, and supervision of security and cleanliness
at the stadium. It is further contended that the Labour Court failed to
appreciate the admissions contained in the Respondent’s affidavit and
the evidence led by the Management, including the testimony that
approximately eleven to twelve workers were working under the
Respondent’s supervision.
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b. The Petitioner also assails the finding that the Respondent had
completed 240 days of continuous service, submitting that neither such
a plea was raised in the Statement of Claim, nor was any evidence
adduced to establish the same. It is urged that the burden of proving
completion of 240 days rested upon the Respondent and was not
discharged.
c. The Petitioner further submits that the Respondent’s engagements
were purely ad hoc and contractual in nature, accepted by him without
objection, and were for specific and fixed periods. Consequently, the
case was covered by the exception contained in Section 2(oo)(bb) of the
Industrial Disputes Act, 1947.
d. It is also contended that the Labour Court failed to appreciate that
the Sports Authority of India is a society established and controlled by
the Central Government and that the provisions of the Administrative
Tribunals Act, 1985 had been made applicable to it with effect from 17
July 1995.
e. Lastly, the Petitioner challenges the jurisdiction of the Labour Court
to adjudicate the dispute and submits that the impugned Award, having
been rendered without jurisdiction, is liable to be set aside.
4. On the other hand, it is the case of the Respondent before this Court
that the present Writ Petition is not maintainable, contending that this
Court, in exercise of its writ jurisdiction, does not sit as an appellate court
to reappreciate evidence or interfere with plausible findings of fact
recorded by the Labour Court. It is submitted that, upon due consideration
of the pleadings and evidence on record, the Labour Court rightly
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concluded that the deceased employee was a “workman” within the
meaning of Section 2(s) of the Industrial Disputes Act, 1947 and had
admittedly worked for more than 240 days; consequently, his termination
with effect from 24 January 1990, having been effected in violation of
Section 25F of the Industrial Disputes Act, 1947, was rightly held to be
illegal. It is, therefore, contended that the impugned Award warrants no
interference under Articles 226 and 227 of the Constitution and the present
Writ Petition is liable to be dismissed.
ISSUES INVOLVED
5. In light of the facts and grounds noted hereinabove, the questions
that arise for consideration before this Court are set out hereunder.
a. Whether the Respondent was a “Workman” within the meaning of
Section 2(s) of the Industrial Disputes Act, 1947, notwithstanding his
designation as a Supervisor and the nature of duties allegedly
discharged by him?
b. Whether the Respondent’s engagement was contractual and for
specified periods and, if so, whether the cessation of his employment
upon expiry of the contractual term was covered by the exception
contained in Section 2(oo)(bb) of the Industrial Disputes Act, 1947?
c. Whether the Labour Court erred in holding that the Respondent had
completed 240 days of continuous service, particularly in the absence
of any specific pleading or evidence to that effect, and whether, in the
facts and circumstances of the case, the Respondent was entitled to the
protection of Section 25F of the Industrial Disputes Act, 1947?
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d. Whether the impugned Award suffers from perversity, non-
application of mind or patent illegality warranting interference under
Article 226 of the Constitution of India, and if so, to what relief the
parties are entitled.
SUBMISSIONS OF THE PETITIONER
6. Besides the grounds of challenge set out in the Writ Petition, learned
counsel for the Petitioner has further contended as under:
a. Learned counsel for the Petitioner submits that Section 25F of the
Industrial Disputes Act, 1947 is inapplicable, as the Respondent was not
retrenched from service and his engagement came to an end by efflux
of time upon expiry of the contractual period. Reliance is placed on
Section 2(oo)(bb) of the Act, which excludes termination resulting from
non-renewal of a contract of employment from the definition of
retrenchment.
b. Without prejudice to the aforesaid, it is further submitted by the
learned Counsel that the Respondent was not a “Workman” within the
meaning of Section 2(s) of the Act. Learned counsel contends that,
during the relevant period, an employee engaged in a supervisory
capacity and drawing wages exceeding Rs. 1,600/- (Rupees Sixteen
Hundred only) per month stood excluded from the definition of a
Workman. Since the Respondent was appointed as a Supervisor, was
drawing wages of Rs. 1,800/- (Rupees Eighteen Hundred only) per
month, and had himself described his employment as that of a
Supervisor in the Statement of Claim, he did not fall within the ambit of
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evidence to contend that the Respondent was working in a supervisory
capacity.
c. Lastly, and without admitting the applicability of Section 25F of the
Act, it is submitted that the compensation of Rs. 30,000/- (Rupees
Thirty Thousand only) awarded by the Labour Court is excessive and
disproportionate. Learned counsel contends that the Respondent worked
only for approximately two years and six months and that the
compensation payable under Section 25F of the Act would work out to
approximately Rs. 2,250/- (Rupees Two Thousand Two Hundred and
Fifty only).
d. Learned counsel for the Petitioner has further placed reliance upon
the decision of the Supreme Court in State of Rajasthan v. Rameshwar
Lal Gahlot, (1996) 1 SCC 595, to contend that where an employee is
appointed for a fixed term and the engagement comes to an end upon
expiry of the contractual period, such cessation of service does not
amount to “retrenchment” within the meaning of the Industrial Disputes
Act, 1947. In this case, the Supreme Court, while interpreting Section
2(oo)(bb) of the Act, held that termination in terms of a fixed-term
appointment is excluded from the definition of retrenchment and,
consequently, the requirements of Section 25F of the Act would not be
attracted. The Supreme Court further observed that, unless the fixed-
term appointment is shown to be mala fide, a misuse of power, or a
colourable exercise adopted to defeat statutory protections, as well the
termination in accordance with the terms of appointment cannot be held
to be illegal.
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ANALYSIS AND DISCUSSION
7. At the outset, it is pertinent to note that no oral submissions were
addressed by either side. The Petitioner has rested its case on the Written
Submissions filed on record. It is further observed that none has entered
an appearance on behalf of the Respondent for nearly a decade. In the
circumstances, the matter has proceeded ex parte against the Respondent
and is being considered on the basis of the record and the written
submissions advanced on behalf of the Petitioner.
8. Before adverting to the issues framed in the present Petition, it is
apposite to observe that the jurisdiction of this Court under Articles 226
and 227 of the Constitution of India, while examining an Award passed by
the Labour Court, is supervisory in nature and circumscribed in scope. It
is well settled that the High Court does not act as an appellate authority
over the findings returned by the Labour Court. Interference is warranted
only where the Award suffers from patent illegality, perversity,
jurisdictional error, or where material evidence has been ignored.
9. The Supreme Court in Syed Yakoob v. K.S. Radhakrishnan, AIR
1964 SC 477, held that interference under certiorari jurisdiction is only
justified where a tribunal acts in excess of jurisdiction or where its findings
are based on no evidence.
10. Therefore, the High Court, in writ proceedings, does not re-examine
or re-appreciate the evidence recorded by the Tribunal below, nor does it
substitute its own view for that of the adjudicatory body. The award of the
Labour Court can be set aside only if there is an error apparent on the face
of the record.
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11. So, while this Court remains conscious of the limitations inherent in
writ jurisdiction, it is equally mindful that findings rendered in disregard
of the settled legal principles, or the admitted evidence, cannot be
permitted to sustain merely on considerations of judicial restraint.
12. To begin with, the impugned Award proceeds on the premise that
the Respondent was a “Workman” within the meaning of the Industrial
Disputes Act, 1947, and had completed 240 days of continuous service,
thereby entitling him to the protection of Section 25F of the Act. The
validity of these findings lies at the heart of the present controversy.
13. The Petitioner has foremostly questioned the finding of the Labour
Court that the Respondent was a “Workman” within the meaning of
Section 2(s) of the Industrial Disputes Act, 1947. It has been contended on
behalf of the Petitioner that the Respondent was appointed as a Supervisor
and was drawing wages of Rs. 1,800/-(Rupees Eighteen Hundred only) per
month, and was discharging supervisory functions. Reliance has also been
placed on the Respondent’s own Statement of Claim, wherein he described
himself as a Supervisor, as well as the testimony of the Management
witness who deposed that the Respondent was performing supervisory
duties and that several workers were working under his supervision.
14. Before examining the merits of the said contention, it is necessary
to note that the law relating to the determination of whether an employee
falls within the definition of a “workman” under Section 2(s) of the Act is
well settled.
15. The Supreme Court, in Arkal Govind Raj Rao v. Ciba Geigy of
India Ltd., 1985 Supp SCC 175, held that the designation or nomenclature
assigned to an employee is not determinative of his status. Rather, the
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Court must examine the dominant and substantive nature of the duties
actually discharged by the employee. It is, therefore, well settled that the
true test for determining whether an employee falls within the ambit of a
“workman” is the primary and predominant nature of the duties performed,
and not the title or designation attached to the post held.
16. The Labour Court, in the present case, examined the evidence led
by the parties in the light of the aforesaid principles. The impugned Award
records that, although the Respondent was designated as a Supervisor, he
deposed that he was engaged in liaison work, maintenance of accounts
relating to admissions under regular and pay-and-play schemes, operation
and maintenance of the electronic touch pad system, sale of swimming
pool tickets, and allied duties. The Labour Court also took note of the fact
that the Management was unable to produce any material demonstrating
that the Respondent possessed powers ordinarily associated with
supervisory or managerial control, such as the authority to sanction leave,
initiate disciplinary proceedings, appoint employees, or exercise
administrative control over subordinate staff.
17. The Labour Court further noticed that the appointment documents
relied upon by the Management did not specify the precise duties to be
discharged by the Respondent. While the Management witness asserted
that the Respondent was functioning in a supervisory capacity, no
documentary evidence was produced to substantiate the existence of
supervisory powers or responsibilities. The Labour Court was, therefore,
justified in examining the substance of the duties performed rather than
proceeding solely on the basis of the designation assigned to the
Respondent.
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18. This Court is mindful that the determination of whether an
employee is a workman is essentially a question of fact to be decided on
the basis of the evidence available on record.
19. The Labour Court, being the final fact-finding authority, undertook
such an exercise and arrived at a conclusion upon appreciation of the oral
and documentary evidence placed before it. Merely because another view
may also be possible would not justify interference with such a finding in
the exercise of writ jurisdiction.
20. Having considered the reasoning contained in the impugned Award
and the evidence referred to therein, this Court is of the opinion that the
Labour Court correctly applied the settled principle that designation alone
is not determinative and that the dominant nature of duties must govern
the inquiry.
21. Accordingly, this Court is in agreement with the finding
returned by the learned Labour Court that the Respondent is a
“Workman” within the meaning of Section 2(s) of the Industrial
Disputes Act, 1947.
22. Moving on, the Petitioner has consistently maintained that the
Respondent was engaged on contractual appointments for specified
periods and that his engagement was extended from time to time through
separate appointment orders. It has further been contended that the last
appointment order dated 22 December 1989 specifically stipulated that the
Respondent’s engagement would remain effective from 11 December 1989
to 10 January 1990 and that no further extension was granted thereafter.
According to the Petitioner, the Respondent’s services came to an end upon
expiry of the contractual period and not by way of retrenchment.
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23. In order to appreciate the aforesaid contention, it becomes necessary
to advert to Section 2(oo)(bb) of the Industrial Disputes Act, 1947, which
reads as under:
“2(oo) ‘retrenchment’ means the termination by the employer of
the service of a workman for any reason whatsoever, otherwise
than as a punishment inflicted by way of disciplinary action, but
does not include–
…
(bb) termination of the service of the workman as a result of the
non-renewal of the contract of employment between the employer
and the workman concerned on its expiry or of such contract
being terminated under a stipulation in that behalf contained
therein.”
24. A plain reading of the aforesaid provision demonstrates that where
the cessation of employment takes place either upon the expiry of a
contractual term or in accordance with a stipulation contained in the
contract itself, such termination is specifically excluded from the ambit of
“retrenchment”. Consequently, where a case falls within the exception
carved out under Section 2(oo)(bb) of the Act, the requirements of Section
25F of the Act would not be attracted.
25. The scope and effect of Section 2(oo)(bb) of the Act have been
considered by the Supreme Court in a catena of decisions. In M.
Venugopal v. Divisional Manager, LIC, (1994) 2 SCC 323, the Supreme
Court held that where the cessation of service occurs strictly in terms of
the contractual appointment, such termination would not amount to
retrenchment within the meaning of the Industrial Disputes Act, 1947.
26. The aforesaid principle was subsequently reiterated in State of
Rajasthan v. Rameshwar Lal Gahlot (supra), a decision strongly relied
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upon by the Petitioner in the present case. To reiterate, in the said decision,
the employee had been appointed for a fixed period, and his services came
to an end upon the expiry of the stipulated term. The Supreme Court held
that where an appointment is for a fixed period, termination upon the
expiry of such period falls within the exception contained in Section
2(oo)(bb) of the Act, with the consequence that Section 25F of the Act has
no application. The Court further clarified that such termination cannot be
held to be illegal unless the contractual arrangement is shown to be mala
fide, a misuse of power, or a colourable exercise adopted to defeat the
statutory protections available to workmen. It was further observed that
where the termination is protected by Section 2(oo)(bb) of the Act, neither
reinstatement nor fresh appointment could ordinarily be granted.
27. Examined in the light of the aforesaid statutory framework and
judicial precedents, this Court is of the considered opinion that the Labour
Court failed to undertake the necessary inquiry regarding the applicability
of Section 2(oo)(bb) of the Act. The award proceeds directly to the
question of compliance with Section 25F of the Act without first
determining whether the Respondent’s cessation of service amounted to
“retrenchment” at all.
28. Although the Labour Court observed that the Respondent had been
granted successive appointments and that artificial breaks had been
introduced by the Management, no finding has been returned that the
contractual appointments were a sham, mala fide, or a colourable exercise
of power intended to circumvent labour welfare legislation. Similarly,
there is no finding that the stipulations contained in the appointment orders
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were illusory or that the power under Section 2(oo)(bb) of the Act had
been abused by the Petitioner.
29. Accordingly, the submission advanced by the Petitioner, founded
upon the aforesaid decision, deserves to be accepted.
30. Therefore, in light of the foregoing discussion, it is the considered
opinion of this Court that in the absence of any such finding, the Labour
Court could not have disregarded the statutory exception expressly
engrafted under Section 2(oo)(bb) of the Act. The question whether the
Respondent’s engagement came to an end upon expiry of the contractual
term constituted a foundational issue which required determination before
proceeding to examine compliance with Section 25F of the Act.
31. It is pertinent to reiterate that the Respondent’s engagement came to
an end solely on account of the expiry of the contractual term stipulated in
the appointment letter, i.e., by efflux of time. The appointment letter
unequivocally fixed the tenure of the Respondent from 11 December 1989
to 10 January 1990, and there is nothing on record to indicate that the said
tenure was either extended or that the Respondent was required to continue
in service thereafter. The cessation of the Respondent’s engagement was,
therefore, the natural consequence of the expiry of the contractual term,
and not the result of any order of termination passed by the Petitioner.
32. Hence, in the facts and circumstances of the present case, this Court
is of the considered view that the cessation of the Respondent’s services
falls within the exception carved out under Section 2(oo)(bb) of the Act.
33. In view of the aforesaid discussion, this Court is further of the view
that the learned Labour Court erred in law in proceeding on the premise
that the cessation of the Respondent’s services amounted to “retrenchment”
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without first determining the applicability of the exception contained in
Section 2(oo)(bb) of the Industrial Disputes Act, 1947. This Court
further finds that, in the absence of any finding that the successive
contractual appointments were sham, mala fide, or a colourable
exercise adopted to defeat the provisions of the Act, the Respondent’s
cessation of service upon the expiry of the contractual term squarely
falls within the ambit of Section 2(oo)(bb) of the Act. and,
consequently, does not amount to “retrenchment” within the meaning
of the Act.
34. Even assuming, for the sake of argument, that the Respondent’s
cessation of service amounted to retrenchment, the Respondent would still
be required to establish that he satisfied the statutory conditions necessary
to claim the protection of Section 25F of the Act. Mere proof that his
services were continuously utilised by the Management, or even that the
Management had acted unfairly or mala fide, would not, by itself, entitle
the Respondent to the protection of Section 25F of the Act.
35. Therefore, the question whether the statutory preconditions for
availing the protection under Section 25F of the Act stood satisfied is a
distinct and independent issue requiring separate consideration. The
correctness of the finding returned by the learned Labour Court in the
impugned Award on this aspect is, therefore, central to the adjudication of
the present writ petition
36. Section 25F of the Industrial Disputes Act, 1947, lays down
mandatory conditions that an employer must fulfil before retrenching a
workman who has completed continuous service of not less than one year
in an industrial establishment. In essence, it is established that non-
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compliance with the mandatory conditions prescribed under Section 25F
of the Act renders the termination illegal. The provision reads as follows-
“25F. 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 workman 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:
(b) the workman 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 appropriate
Government or such authority as may be specified by the
appropriate Government by notification in the Official Gazette.”
37. Therefore, it is safe to say that to avail the protection under Section
25F of the Industrial Disputes Act, a workman is required to establish that
he has completed 240 days of continuous service in the preceding twelve
months, which constitutes a mandatory evidentiary requirement. In
matters of this nature, the burden of proof initially lies upon the workman.
38. At this point, the judgment of the Hon’ble Supreme Court in the
case of Mohd. Ali vs. State of H.P. & Ors., (2018) 15 SCC 641, appears
to be material, and the relevant part of the judgment is extracted hereunder.
“It is a well-known fact that the Industrial Disputes Act is a welfare
legislation. The intention behind the enactment of this Act was to
protect the employees from arbitrary retrenchments. For this reason
only, in a case of retrenchment of an employee who has worked for a
year or more, Section 25F provides a safeguard in the form of givingSignature Not Verified
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one month’s prior notice, indicating the reasons for retrenchment to
the employee and also provides for wages for the period of notice.
Section 25B of the Act provides that when a person can be said to
have worked for one year, and the very reading of the said provisions
makes it clear that if a person has worked for a period of 240 days in
the last preceding year, he is deemed to have worked for a year. The
theory of 240 days for continuous service is that a workman is
deemed to be in continuous service for a period of one year, if he,
during the period of twelve calendar months preceding the date of
retrenchment, has actually worked under the employer for not less
than 240 days.”
39. That being the case, it is safe to say that the determination of
whether the provisions of Section 25F of the Act are attracted in the
present case depends on whether the Respondent herein had completed the
requisite period of service of 240 days in the year preceding the
termination.
40. In light of the above, the requirement of pleading and proving
completion of 240 days is not a mere technical formality. The entire
statutory protection contained in Section 25F of the Act becomes available
only when the workman establishes the factual foundation necessary to
invoke the provision.
41. Once again, it must be noted that the initial burden of proving the
completion of 240 days in service in the year preceding the termination
lies on the Workman, itself.
42. Support in the aforesaid regard may be taken from the judgment of
the Hon’ble Supreme Court in the case of “R.M. Yellatti vs. The Assistant
Executive Engineer, 2006 (1) SCC 106″, wherein the Hon’ble Supreme
Court, while taking note of Manager, Reserve Bank of India, Bangalore
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vs. S. Mani, (2005) 5 SCC 100, and clarified the aforesaid position. The
relevant part of the judgment is extracted hereunder.
“Now coming to the question of burden of proof as to the
completion of 240 days of continuous work in a year, the law is
well settled. In the case of Manager, Reserve Bank of India,
Bangalore v. S. Mani reported in (2005) 5 SCC 100, the workmen
raised a contention of rendering continuous service between
April, 1980 to December, 1982 in their pleadings and in their
representations. They merely contended in their affidavits that
they had worked for 240 days. The tribunal based its decision on
the management not producing attendance register. In view of the
affidavits filed by the workmen, the tribunal held that the burden
on the workmen to prove 240 days service stood discharged. In
that matter, a three-judge bench of this court held that pleadings
did not constitute a substitute for proof and that the affidavits
contained self-serving statements; that no workman took an oath
to state that they had worked for 240 days; that no document in
support of the said plea was ever produced and, therefore, this
court took the view that the workmen had failed to discharge the
burden on them of proving that they had worked for 240 days.
According to the said judgment, only by reason of non-response
to the complaints filed by the workmen, it cannot be said that the
workmen had proved that they had worked for 240 days. In that
case, the workmen had not called upon the management to
produce relevant documents. The court observed that the initial
burden of establishing the factum of continuous work for 240 days
in a year was on the workmen. In the circumstances, this court set
aside the award of the industrial tribunal ordering
reinstatement.”
(emphasis supplied)
43. Furthermore, in the case of “R.M. Yellatti vs. The Assistant
Executive Engineer (supra)” itself, the Hon’ble Apex Court has also
considered the decision in “Municipal Corporation, Faridabad vs Siri
Niwas, (2004) 8 SCC 195″, wherein the concrete principles in respect to
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the concept of 240 days by the workman are laid out. The relevant
paragraph is extracted hereunder.
“……Overruling the decision of the High Court, this court found
on facts of that case that the employee had not adduced any
evidence before the court in support of his contention of having
complied with the requirement of section 25-B of Industrial
Disputes Act.”
(emphasis supplied)
44. Therefore, it is well settled that for a workman to successfully assail
termination under the Industrial Disputes Act, 1947, the workman must
demonstrate that he had completed continuous service within the meaning
of Section 25B of the Industrial Disputes Act, 1947, i.e., that he had
worked for at least 240 days in the twelve calendar months preceding the
termination. Only upon satisfaction of these conditions does the protection
under Section 25F of the Industrial Disputes Act, 1947, become
applicable. In the absence of compliance with these statutory
requirements, a plea of illegal retrenchment cannot be sustained.
45. The judgment of the Hon’ble Apex Court in Mohal Lal vs.
Management of M/s Bharat Electronics Ltd., (1981) 3 SCC 225,
reaffirms the aforestated position.
“Before a workman can complain of retrenchment being not in
consonance with section 25F, he has to show that he has been in
continuous service for not less than one year under that employer
who has retrenched him from service. Section 25B is the
dictionary clause for the expression ‘continuous’.”
46. In the present case, the position regarding the completion of 240
days of continuous service of the Workman in the year preceding the
termination remains unclear. The Respondent has asserted that he worked
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with the Petitioner-Management for approximately three years; however,
neither in the Statement of Claim before the learned Labour Court nor in
the pleadings before this Court has the Respondent specifically averred
that he had completed 240 days of continuous service during the twelve
months immediately preceding the termination, which is the statutory
precondition for attracting the protection against retrenchment under the
Industrial Disputes Act, 1947. The pleadings are conspicuously silent on
this essential statutory requirement.
47. In furtherance, the Labour Court has recorded a finding that the
Respondent had completed 240 days of service. However, neither the
impugned Award nor the material referred to therein demonstrates the
evidentiary basis for arriving at such a conclusion. Significantly, the
Labour Court itself records that the Respondent was engaged through a
series of appointments and extensions. Yet, there is no discussion
regarding the exact period constituting continuous service, the manner in
which the statutory threshold stood satisfied, or the evidence relied upon
to establish the same.
48. Even upon examination of the record available, no material is
forthcoming to indicate that the Respondent had completed 240 days of
service in the preceding year before the termination. Moreover, there is no
categorical assertion or proof on the part of Respondent/Workman herein
relating to the completion of 240 days in any relevant twelve-month
period.
49. It is true that in cases involving daily-rated workers, strict
documentary proof may not always be available. However, even in such
cases, a foundational pleading or oral assertion regarding completion of
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240 days is required, upon which the burden may shift to the employer. In
the present case, the Respondent has not even laid such foundational facts.
In the absence of any pleading or evidence to this effect, this Court cannot
presume completion of 240 days of service.
50. It is trite that the statutory protection under Section 25F of the
Industrial Disputes Act, 1947, is attracted only when the workman has
completed one year of continuous service as defined under Section 25B of
the Act. In the absence of proof regarding completion of 240 days of
service in the preceding year, the Respondent cannot claim the benefit of
Section 25F of the Act. Consequently, although the termination may
appear harsh, it cannot be held illegal on the grounds of non-compliance
with Section 25F of the Act.
51. In this context, it is settled that a Court exercising jurisdiction under
Article 226 of the Constitution of India cannot assume facts which remain
unproven. The Court cannot substitute proof with presumption nor grant
relief on equitable considerations contrary to the scheme of the Industrial
Disputes Act, 1947. The burden to establish completion of 240 days lies
upon the workman.
52. Therefore, in the considered view of this Court, the finding
regarding completion of 240 days has been recorded by the learned Labour
Court without adequate pleading and without proper examination of the
evidentiary burden cast upon the workman under law. Such a finding
cannot, therefore, be sustained.
53. In view of the foregoing discussion, this Court is of the considered
opinion that the Respondent failed to establish the foundational facts
necessary to invoke the protection of Section 25F of the Industrial
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Disputes Act, 1947. As noticed hereinabove, neither was there any specific
pleading regarding completion of 240 days of continuous service in the
twelve months preceding the cessation of employment, nor was any cogent
evidence adduced to establish the same. The Labour Court, while
recording a finding that the Respondent had completed 240 days of
service, did not indicate the evidentiary basis for such a conclusion nor
examine whether the burden cast upon the workman in law had been duly
discharged.
54. In view of the aforesaid discussion, once again, this Court finds that
the Respondent’s cessation of service falls within the exception carved out
under Section 2(oo)(bb) of the Industrial Disputes Act, 1947, and,
therefore, does not constitute “retrenchment” within the meaning of the
Act. Consequently, the provisions of Section 25F of the Act are, in any
event, inapplicable to the facts of the present case.
55. This Court is further of the considered opinion that, even assuming
the provisions of Section 25F of the Act were attracted, the Respondent
has failed to establish the foundational facts necessary to claim the
protection thereof. The Respondent neither pleaded nor proved that he had
completed 240 days of continuous service in the twelve calendar months
immediately preceding the cessation of his engagement, which constitutes
the statutory precondition for invoking the protection under Section 25F
of the Act. The finding recorded by the learned Labour Court to the
contrary, having been rendered without any cogent evidentiary basis and
in disregard of the settled legal principles governing Sections 25B and 25F
of the Act, cannot be sustained in law.
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56. Accordingly, the Respondent was not entitled to the protection
of Section 25F of the Act, both because his case is squarely covered by
the exception contained in Section 2(oo)(bb) of the Act and because he
failed to satisfy the statutory conditions precedent for invoking such
protection. The contrary findings recorded by the learned Labour Court
are, therefore, unsustainable.
CONCLUSION
57. In view of the foregoing discussion, this Court finds no infirmity in
the finding of the Labour Court that the Respondent was a “workman”
within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.
The said finding is based on an appreciation of the evidence on record and
does not warrant interference.
58. Further, this Court holds that the Labour Court failed to examine the
applicability of the exception contained in Section 2(oo)(bb) of the
Industrial Disputes Act, 1947, before proceeding to consider compliance
with Section 25F of the Act. In the absence of any finding that the
contractual appointments were mala fide or a colourable exercise of
power, the statutory exception could not have been disregarded.
59. It is further held that the learned Labour Court erred in concluding
that the Respondent had completed 240 days of continuous service and
was, therefore, entitled to the protection of Section 25F of the Industrial
Disputes Act, 1947. There was neither any specific pleading by the
Respondent asserting completion of the requisite period of continuous
service nor any cogent evidence on record to substantiate the same.
Consequently, the findings recorded by the learned Labour Court
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regarding the completion of 240 days of continuous service and the
Respondent’s consequent entitlement to the protection of Section 25F of
the Act are unsustainable in law and are accordingly set aside.
60. Accordingly, the impugned Award dated 08 January 2003 cannot be
sustained and is hereby set aside in the aforesaid terms.
61. The Writ Petition is allowed in the aforesaid terms. Pending
applications, if any, also stand disposed of.
62. There shall be no order as to costs.
SHAIL JAIN
JUDGE
JULY 09, 2026
MM
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