IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

Appellate Side

Present:

The Hon’ble Justice Debangsu Basak

And

The Hon’ble Justice Ajay Kumar Gupta

MAT NO.73 OF 2024

WITH

MAT NO. 74 of 2024

Smt. S.Manohari and others

Vs

The Executive Engineer

Mr. Gopala Binnu Kumar,Adv …. For the appellant

Mr. Rakesh Kumar.Adv

...For the respondent

Heard on : 19.02.2026 & 24.02.2026

Judgment on : 25.02.2026

Ajay Kumar Gupta, J:

1. The appellants herein have assailed the Judgment and Order dated

November 12, 2024, passed by the learned Single Bench in WPA No.

107 of 2020 and WPA 117 of 2020 by filing these instant two

appeals. Both appeals involves common sets of facts and identical

issues of law and therefore these are taken up together for disposal.

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2. By the said impugned judgment and order, the Single Judge allowed

the Writ Petition, inter alia, on the following terms:

“In view of the aforesaid, I set aside the impugned Award and

remand the matter to the Labour Court for considering the

matter afresh in the light of the observations made in this

judgment and pass a fresh Award in accordance with law. I

clarify that even if the Tribunal comes to a factual finding on

the basis of material records that the concerned DRMs in fact

worked continuously for 240 days in a year and the

provisions pertaining to retrenchment embodied in the ID Act

would apply, the Tribunal should consider whether or not

reinstatement of the said DRMs should be ordered in the light

of the period of service rendered by them and the principles of

law laid down by the Hon’ble Supreme Court in the decisions

discussed in this judgment. Since, the matter has been

pending for about 4 years, I request the tribunal to give some

precedence to this matter and arrive at a fresh decision, if

necessary by calling for further evidence, as expeditiously as

possible.

30. WPA 107 of 2020 is accordingly allowed consequently,

WPA 117 of 2020 is dismissed. There will be no order as to

costs”.

FACTS OF THE CASE

3. The brief facts, essential for proper and effective disposal of this

appeals, are as follows:

a. The Appellants were engaged as Daily Rated Mazdoors (In short

‘DRM’) in the year 2014, under the Port Blair North Division of

Andaman Public Works Department (In short ‘APWD’). Their

3

services were abruptly discontinued with effect from September 1,

2017.

b. During the period of engagement, the appellants discharged their

duties diligently and continuously, as regular employees. They

were engaged in work against vacant posts and also completed the

statutory 240 days in a calendar year. Consequently, they became

entitled to enhanced wages, namely 1/30

th

of the pay plus DA as

per the Office Memorandum no.289 dated 22.09.2017. The said

Office Memorandum further stipulated that no fresh DRM would

be engaged in any department or organisation of the

Administration until all left-out DRMs appearing in the seniority

list of autonomous bodies in the Andaman & Nicobar

Administration as on 01.09.2017 became eligible for the benefit of

enhanced wages.

c. The appellants were disengaged from service without assigning

any reason. The Administration has removed them with a view to

denying them the benefits of 1/30

th

of pay plus D.A Scheme.

Several workmen who are junior to them in service were retained

in service.

d. At the time of disengagement from service, the administration

failed to comply with the provisions of sections 25F, 25G and 25N

of the Industrial Disputes Act, 1947 (In short ‘ID Act’)

4

e. Upon failure of the conciliation proceedings, the conciliation

officer, by his report dated December 19, 2018, recommended that

the government refer the case to the Labour Court for its

adjudication under the specific provision of the ID Act,1947.

f. The Labour Court, upon appreciation of oral and documentary

evidence adduced by the parties, decided the case in favour of the

Appellants and held that the retrenchment/termination of the 3

DRMs/appellants herein was illegal and in violation of the

statutory provisions. The Learned Court directed the

reinstatement of all 3 DRMs with full back wages and

consequential benefits from the date of disengagement, to be paid

within 2 months from the date of reinstatement.

g. Being aggrieved by and dissatisfied with the said impugned

Award/order passed by the Labour Court, the respondent

challenged the same in WPA No. 107/2020 at the behest of the

Executive Engineer. At the same time, the appellants also filed

WPA 117 of 2020 for the implementation of the said Award.

However, upon hearing the parties, the learned single Judge

passed common judgment and order as aforesaid. The said

judgment and order is under challenge in these present Appeals.

5

SUBMISSIONS ON BEHALF OF THE APPELLANT:

4. Mr. Binnu Kumar, learned counsel appearing on behalf of the

appellants, vehemently argued and submitted that when the

removal from service is unlawful, the appellants are entitled to

reinstatement as well as back wages. The Labour Court rightly held

that the retrenchment/termination of the present DRMs was illegal

and unlawful. The appellants were subjected to discrimination,

inasmuch as workmen junior to them were retained in service, while

the appellants were arbitrarily disengaged without assigning any

reason.

5. It was further submitted that the appellants worked for over 240

days in a calendar year, thereby fulfilling the condition of

“continuous service” within the meaning of section 25B of the ID

Act. Two documents produced by the Administration itself

corroborated this fact. One of the witnesses, i.e. D.W.1 from the side

of the Respondent, admitted during cross-examination that the

Office memo dated 21/01/2019 disclosed correctly that the

petitioners worked more than 240 days continuously. Despite such

admitted position, the Administration disengaged the appellants

without complying with the mandatory provisions of Sections 25F,

25G, and 25N of the ID Act. It was contended that the appellants

could not have been removed at the behest of one or two officials

6

without following due process or affording them an opportunity of

hearing. The Labour Court, therefore, rightly set aside the

disengagement and directed reinstatement with full back wages and

consequential benefits within the stipulated period.

6. Learned counsel has further argued that the learned Single Judge

misunderstood the legal provisions of the ID Act,1947 and erred in

remanding the matter for afresh adjudication. Which is

unsustainable in law. The Hon’ble Single Judge also failed to

appreciate that all DRMs/appellants herein rendered continuous

service without any break and had completed more than 240 days

in the calendar year. If the DRMs have completed more than 240

days, they should not be treated unjustly. The

retrenchment/termination from service without due process of law

is bad in law and cannot be sustained. The Hon’ble Single Judge

also overlooked the legal provisions of 25F, 25G and 25N of the ID

Act, 1947 and erred in concluding that the appellants have not

completed 240 days. It was further contended that the Respondent

also mislead the court that the appellants have not completed 240

days in the calender year. The respondent are calculating the days

of service according to English calender year although the

calculation based on such English Calender year is absolutely

wrong calculation. The working days must be calculated on the

basis of last preceding year as such the judgment and order

7

impugned under challenge will not sustainable and is liable to be

set aside after affirming the Award of the Labour court.

7. Learned counsel submitted that while calculating the period of 240

days, the holidays and non-wokring days are also required to be

included, in accordance with settled principles of law.

8. Learned counsel has placed reliance on decisions of this High Court

as well as the Hon’ble Supreme Court to bolster his aforesaid

contention as under:

i. Workmen of American Express International Banking

Corporation vs. Management of American Express

International Banking Corporation

1

, particularly paragraphs 5

and 6;

ii. The Executive Engineer, North Andaman Construction

Division (NACD) v. Smt. Rekha Nair and ors (WPA No.241 of

2019)

SUBMISSIONS ON BEHALF OF THE RESPONDENT:

9. Per contra, the Learned Rakesh Kumar appearing on behalf of the

respondent vehemently opposed the submissions made by Mr.

Binnu Kumar and contended that the Hon’ble Single Bench rightly

adjudicated the issues involved and correctly remanded the matter

to the Labour Court for fresh adjudication in the light of the

observations made in the impugned judgment. It was submitted that

1

(1985) 4 Supreme Court Cases 71

8

the appellants have been afforded the opportunity to present their

case before the Labour Court and that the present appeal has been

filed unnecessarily with the sole intent to harass the respondent. It

was further contended that the Appeal is not maintainable on

multiple grounds.

10. Firstly, it was submitted that the appellants had already availed all

remedial measures provided under the ID Act before the Learned

Labour Court, and therefore, the present appeal is not maintainable

and is liable to be dismissed at the threshold.

11. Secondly, the appellants had not completed a total of 240 days in

the calendar year. In view of the decision of the Hon’ble Supreme

Court in the case of Mohd Ali Vs. State of H.P. and Others

2

, it was

argued that in the absence of completion of 240 days, the appellants

are not entitled to any relief or benefits. Accordingly, it was urged

that the judgment and order passed by the Single bench should not

to be interferred as it was rightly decided, and that the Labour court

may decide afresh in accordance with law.

DISCUSSION, ANALYSIS AND FINAL CONCLUSION OF THIS

COURT:

12. Having considered the rival submissions and upon perusal of the

materials on record, this Court is required to examine whether the

learned Single Judge was justified in remanding the matter for fresh

2

(2018) 17 SCC 1

9

adjudication, despite a reasoned award passed by the Labour Court

holding the retrenchment/disengagement of the appellants to be

illegal.

13. Before deciding the issues involved herein, this Court would like to

notice the following relevant legal provisions of the ID ACT, 1947

and the Rules for the sake of convenience and effective disposal of

these appeals:-

“25-B. Definition of continuous service__ For the purposes of this

Chapter,__

(1) a workman shall be said to be in continuous service for a period if

he is, for that period, in uninterrupted service, including service which

may be interrupted on account of sickness or authorised leave or an

accident or a strike which is not illegal, or a lock-out or a cessation of

work which is not due to any fault on the part of the workman;

(2) where a workman is not in continuous service within the meaning

of clause (1) for a period of one year or six months, he shall be deemed

to be in continuous service under an employer-

(a) for a period of one year, if the 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 for

not less than___

(i) one hundred and ninety days in the case of a workman employed

below ground in a mine; and

(ii) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six

calendar months preceding the date with reference to which

10

calculation is to be made, has actually worked under the employer for

not less than__

(i) ninety-five days, in the case of a workman employed below ground

in a mine; and

(ii) one hundred and twenty days, in any other case.

Explanation .-For the purposes of clause (2), the number of days on

which a workman has actually worked under an employer shall

include the days on which-

(i) he has been laid off under an agreement or as permitted by

standing orders made under the Industrial Employment (Standing

Orders) Act, 1946 (20 of 1946), or under this Act or under any other

law applicable to the industrial establishment;

((ii) he has been on leave with full wages, earned in the previous year;

(iii) he has been absent due to temporary disablement caused by

accident arising out of and in the course of his employment; and

(iv) in the case of a female, she has been on maternity leave; so,

however, that the total period of such maternity leave does not exceed

twelve weeks. ]

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: [* * *] [ Proviso

omitted by Act 49 of 1984, S.3 (w.e.f 18.08.1984)]

(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 continuous service] [ Substituted by Act 36

11

of 1964, Section 14, for "for every completed year of service" (w.e.f.

19.12.1964).] 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.] [Inserted by Act 36

of 1964, Section 14 (w.e.f. 19.12.1964).]

25G. Procedure for retrenchment. __ Where any workman in an

industrial establishment, who is a citizen of India, is to be retrenched

and he belongs to a particular category of workmen in that

establishment, in the absence of any agreement between the employer

and the workman in this behalf, the employer shall ordinarily retrench

the workman who was the last person to be employed in that category,

unless for reasons to be recorded the employer retrenches any other

workman.

25N. [Conditions precedent to retrenchment of workmen.__ (1) No

workman employed in any industrial establishment to which this

Chapter applies, 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 three months' 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; and

(b) the prior permission of the appropriate Government or such

authority as may be specified by that Government by Notification in

the official Gazette (hereafter in this section referred to as the specified

authority) has been obtained on an application made in this behalf.

(2) An application for permission under sub-section (1) shall be made

by the employer in the prescribed manner stating clearly the reasons

for the intended retrenchment and a copy of such application shall also

12

be served simultaneously on the workmen concerned in the prescribed

manner.

(3) Where an application for permission under sub-section (1) has been

made, the appropriate Government or the specified authority, after

making such enquiry as it thinks fit and after giving a reasonable

opportunity of being heard to the employer, the workmen concerned

and the persons interested in such retrenchment, may, having regard

to the genuineness and adequacy of the reasons stated by the

employer, the interests of the workmen and all other relevant factors,

by order and for reasons to be recorded in writing, grant or refuse to

grant such permission and a copy of such order shall be communicated

to the employer and the workmen.

(4) Where an application for permission has been made under sub-

section (1) and the appropriate Government or the specified authority

does not communicate the order granting or refusing to grant

permission to the employer within a period of sixty days from the date

on which such application is made, the permission applied for shall be

deemed to have been granted on the expiration of the said period of

sixty days.

(5) An order of the appropriate Government or the specified authority

granting or refusing to grant permission shall, subject to the provisions

of sub-section (6), be final and binding on all the parties concerned and

shall remain in force for one year form the date of such order.

(6) The appropriate Government or the specified authority may, either

on its own motion or on the application made by the employer or any

workman, review its order granting or refusing to grant permission

under sub-section (3) or refer the matter or, as the case may be, cause

it to be referred, to a Tribunal for adjudication:

Provided that where a reference has been made to a Tribunal under

this sub-section, it shall pass an award within a period of thirty days

from the date of such reference.

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(7) Where no application for permission under sub-section (1) is made,

or where the permission for any retrenchment has been refused, such

retrenchment shall be deemed to be illegal from the date on which the

notice of retrenchment was given to the workman and the workman

shall be entitled to all the benefits under any law for the time being in

force as if no notice had been given to him.

(8) Notwithstanding anything contained in the foregoing provisions of

this section, the appropriate Government may, if it is satisfied that

owing to such exceptional circumstances as accident in the

establishment or death of the employer or the like, it is necessary so to

do, by order, direct that the provisions of sub-section (1) shall not apply

in relation to such establishment for such period as may be specified in

the order.

(9) Where permission for retrenchment has been granted under sub-

section (3) or where permission for retrenchment is deemed to be

granted under sub-section (4), every workman who is employed in that

establishment immediately before the date of application for

permission under this section shall be entitled to receive, at the time of

retrenchment, compensation which shall be equivalent to fifteen

days'average pay for every completed year of continuous service or

any part thereof in excess of six months.]”

14. At the outset, it is not in dispute that the appellants were engaged

as DRMs under the Andaman Public Works Department since 2014

and that their services were disengaged with effect from 01.09.2017.

The Labour Court, on appreciation of both oral and documentary

evidence, recorded a categorical finding that the appellants had

rendered continuous service and had completed more than 240 days

in the relevant period preceding their disengagement. Such finding

was not based merely on the testimony of the workmen but was

14

corroborated by documents produced by the Administration itself,

including the Office Memorandum dated 21.01.2019, and by the

admission of D.W.1 during cross-examination.

15. Once completion of 240 days of continuous service within the

meaning of Section 25B of the Industrial Disputes Act, 1947 stood

established, the statutory protection under Chapter V-A of the Act

stood attracted. It is also not in dispute that, at the time of

disengagement, the mandatory conditions precedent to

retrenchment as laid down under Section 25F of the Industrial

Disputes Act, 1947 were not complied with. Further, the Labour

Court recorded findings that the principle of “last come, first go”

embodied in Section 25G was violated, inasmuch as juniors to the

appellants were retained in service, and no justification for such

deviation was shown. Compliance with Section 25N was also absent,

rendering the action of the Administration procedurally and

substantively illegal.

16. The settled position of law is that retrenchment effected in violation

of Sections 25F and 25G of the Industrial Disputes Act is void ab

initio and non est in the eye of law. In such circumstances,

reinstatement with continuity of service ordinarily follows as a

natural consequence, unless there are exceptional circumstances

warranting denial of such relief. The Labour Court, having found the

retrenchment/disengagement to be illegal and discriminatory,

15

exercised its discretion to grant reinstatement with full back wages

and consequential benefits. Such exercise of discretion was based on

evidence and cannot be characterised as arbitrary or perverse.

17. The appellants have relied upon a judgment in the case of Workmen

of American Express International Banking Corporation vs.

Management of Amiracan Express International Banking

Corporation (Supra), wherein, particularly at paragraph no.5, it

has been held as follows:-

“Section 25-F of the Industrial Disputes Act is plainly intended to give

relief to retrenched workmen. The qualification for relief Under Section

25-F. is that he should be a workman employed in an industry and

has been in continuous service for not less than one year under an

employer. What is continuous service has been defined and explained

in Section 25-B of the Industrial Disputes Act. In the present case, the

provision which is of reliance is Section 25-B(2)(a)(ii) which to the

extent that it concerns us, provides that a workman who is not in

continuous service for a period of one year shall be deemed to be in

continuous service for a period of one year if the workman, during a

period of twelve calendar months preceding the date with reference to

which the calculation is to be made, has actually worked under the

employer for not less than 240 days. The expression which we are

required to construe is 'actually worked under the employer'. This

expression, according to us, cannot mean those days only when me

workman worked with hammer, sickle or pen, but must necessarily

comprehend all those days during which he was in the employment

of the employer and for which he had been paid wages either under

express or implied contract of service or by compulsion of statute,

standing orders etc. The learned counsel for the Management would

urge that only those days which are mentioned in the Explanation to

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Section 25-B(2) should be taken into account for the purpose of

calculating the number of days on which the workmen had actually

worked though he had not so worked and no other days. We do not

think that we are entitled to so constrain the construction of the

expression 'actually worked under the employer'. The explanation is

only clarificatory, as all explanations are, and cannot be used to limit

the expanse of the main provision. If the expression 'actually worked

under the employer' is capable of comprehending the days during

which the workman was in employment and was paid wages-and we

see no impediment to so construe the expression-there is no reason

why the expression should be limited by the explanation. To give it

any other meaning then what we have done would bring the object

of Section 25-F very close to frustration. It is not necessary to give

examples of how 25 F may be frustrated as they are too obvious to be

stated.”

18. Such reliance is apposite, inasmuch as the Hon’ble Supreme Court

has authoritatively held that for the purpose of determining

completion of 240 days, all days for which the workman was paid,

including holidays and non-working days, are liable to be included.

The contention of the respondent that the calculation must be

confined to the English calendar year is misconceived and contrary

to the statutory scheme, which mandates computation with

reference to the twelve months immediately preceding the date of

retrenchment.

19. On the other hand, the reliance placed by the respondent on Mohd.

Ali (Supra) does not advance its case, as the said decision applies to

situations where the workman fails to establish completion of 240

days of continuous service. In the present case, the Labour Court

17

has returned a clear finding of fact, supported by documentary

evidence and admissions, that the appellants had completed the

requisite period of service. Such a finding, being neither perverse

nor unsupported by evidence, ought not to have been lightly

interfered with.

20. Secondly, the Single Bench of this court in WPA No.241 of 2019

relying upon several judgments abd finally held that in case of

termination of Daily wages worker, where the termination is found

to be illegal because of violation of Section 25F of ID Act,1947 and

junior to the terminated worker retained and violated the priniciple

of last come first go they should be allowed to be reinstated in

service.

21. Finally, the judgment relied upon by the respondent is much

clearer and explicit with regard to the calculation of continuous

working days of a workman in the calendar year. The calendar year

refers to the last preceding year. It was further held that it is a well-

known fact that the ID Act is a welfare legislation. The intention

behind the enactment of this Act was to protect the employees from

arbitrary retrenchments or termination. Section 25F provides a

safeguard in the form of giving one month’s prior notice, indicating

the reasons for termination 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

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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.

22. In the present case, after calculation all the three DRMs worked for

more than 240 days in the calender years.

23. The scope of interference by the writ court with an award of the

Labour Court is limited. Unless the award suffers from patent

illegality, perversity, or jurisdictional error, the writ court ought not

to substitute its own view for that of the fact-finding forum. In the

present case, the learned Single Judge, while remanding the matter,

did not record any finding that the award of the Labour Court was

perverse or vitiated by an error apparent on the face of the record.

The remand, therefore, amounts to reopening a concluded

adjudication without adequate justification, which is impermissible

in law.

24. Thus, in the light of the above discussion and foregoing reasons, we

set aside the impugned judgement and order passed by the learned

Single Judge on November 11, 2024. Judgement and award dated

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10.01.2020 passed by the learned Labour Court in I.D.Case No.01 of

2019 is hereby affirmed.

25. In the result, the present appeals, being MAT 73 of 2024 and MAT

74 of 2024, filed by the appellants, are allowed without order as to

costs. Connected applications, if any, stand disposed of.

26. Interim order, if any, stands vacated.

27. Urgent photostat certified copy of this Judgment, if applied for, is to

be given to the parties on a priority basis on compliance of all legal

formalities.

(Ajay Kumar Gupta, J.)

28. I Agree.

(Debangsu Basak, J.)