High Court of Punjab and HaryanaLPA/622/2016allowed

Dulari v. State Of Haryana And ANR.

2023-02-22Mr. Justice Gurmeet Singh Sandhawalia,Ms. Justice Harpreet Kaur Jeewan19 pages

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>7. In the light of the above decisions, the question for consideration, which has been hotly debated, is the status of a part time employee and as to whether such an employee falls within the definition of "workman". ) (s) of the Act deals with the definition of "workman" whereas )@( talks about "continuous service". Both these provisions are reproduced below:

"Sec.2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed,

discharged, or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person - (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."

Sec.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 authorized 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 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."

8. A bare perusal of the two definitions would reveal that their applicability is not limited to only full time employees but all that is required is that the workman claiming continuous service must fulfill the specific conditions amongst others laid down in the two provisions so as to seek the shelter of Section 25F. Mr. Nanda's reliance on Uttaranchal Forest Hospital's case (supra) and Ram Lakhan's case (supra) is misplaced.

In Uttaranchal Forest's case (supra) this Court made a passing reference to the status of a part time employee, but the main issue before the Court was as to whether the workman had, in fact, put in 240 days of service which would entitle him to the benefit of Section 25F of the Act. This is what the Court had to say:

"It is undisputed that the work of cleaning the hospital has been given to a contractor w.e.f. 17.8.1996. Materials were placed before the Labour Court to show that the workman was engaged for doing a part-time job and that he had worked for a few days in several months. The Labour Court itself

on consideration of the documents and records produced noted as follows:- "It is evident that the workman had worked in August 1996-16 days, July, 1996 - 30 days, May, 1996 - 30 days, April, 1996 - 30 days, March, 1996 - 29 days, February, 1996 - 29 days, January, 1996 31 days, December, 1995 -31 days, November, 1995-20 days (full), October, 1995 - 19 days (full) September, 1995 - 25 days (full) @ Rs.35/- per day. In addition to this, in November, 1995 - 3 days, October, 1995 - 9 days @ Rs.20/- per day towards part time work and in September, 1995 - days part time @ Rs.5/- per day, had worked."

The basic difference between a person who is engaged on a part-time basis for one hour or few hours and one who is engaged as a daily wager on regular basis has not been kept in view either by the Labour Court or by the High Court. The documents filed clearly establish that the claim of having worked more than 240 days is clearly belied. The stand of the appellant that the respondent was called for work whenever work was available, and as and when required and that he was not called for doing any work when the same was not available has been established. The Labour Court itself noted that the workman was engaged in work by others as he was working in the appellants' establishment for one hour or little more on some days. It is also seen from the documents produced before the Labour Court that whenever respondent was working for full period of work he was being paid Rs.35/- per day and on other days when he worked for one hour he was getting Rs.5/-."

9. In Ram Lakhan's case (supra), the issue did come up before this Court and while construing the scope of Section 2 (s) and )@( of the Act, this Court observed that a person working on a part time basis could not strictu sensu claim to be in continuous employment of the employer but the larger question as to whether such an employee could be a workman under ),. of the Act so as to claim benefit of )@: thereof was being left open for future discussion. As already held above on facts, we have endorsed the view of the High Court that the workman had, in fact, been working virtually on a full time basis till 5 p.m. and had worked continuously for more than 3 years from 2nd January 1986 to 15th March 1989.

10. On the contrary, the preponderance of judicial opinion that a workman working even on a part time basis would be entitled to benefit of Section 25F of the Act is clear from the various judgments which we have referred to above. In Silver Jubilee Tailoring House case (supra) which is a judgment rendered by a 3-Judge Bench of this Court, the question was as to whether the workers who were paid on piece-rate basis though working in the shop, were workmen in terms of Section 2(s) of the Act. That is what the Court had to say:

"11. The question for decision was whether the agrarians were workmen as defined by Section 2(s) of the Industrial Disputes Act of 1947 or whether they were independent contractors. The Court said that the prima facie test to determine whether there was relationship between employer and employee is the existence of the right in the master to supervise and control the work done by the servant not only in matter of directing what work the employee is to do but also the manner in which he has to do the work. In other words, the proper test according to this Court is, whether or not the master

has the right to control the manner of execution of the work. The Court further said that the nature of (sic) extent of the control might vary from business to business and is by its nature incapable of precise definition, that it is not necessary for holding that a person is an employee, that the employer should be proved to have exercised control over his work, that even the test of control over the manner of work is not one of universal application and that there are many contracts in which the master could not control the manner in which the work was done."

11. For arriving at this conclusion, the Supreme Court referred to various judgments of this Court including Birdichand Sharma's case (supra) but distinguished the judgment in Shankar Balaji Waje's case (supra) (rendered by two Hon'ble Judges) by observing that the workman who was claiming that status was not called upon to attend duties in the factory itself as he was permitted to take the tobacco from the factory owner and role the bidis at his residence at any time without any fixed hour of work and that there was absolutely no supervision of the so called employer over his work. In conclusion, the Bench observed in (paragraph 37):

"That the workers are not obliged to work for the whole day in the shop is not very material. There is of course no reason why a person who is only employed part time, should not be a servant and it is doubtful whether regular part time service can be considered even prima facie to suggest anything other than a contract of service. According to the definition in Section 2(14) of the Act, even if a person is not wholly employed, if he is principally employed in connection with the business of the shop, he will be a `person employed' within the meaning of the sub-section. Therefore, even if he accepts some work from other tailoring establishments or does not

work whole time in a particular establishment, that would not in any way derogate from his being employed in the shop where he is principally employed."

12. It will be seen from a perusal of the aforequoted passages that the observations made therein clearly suggest that a workman employed on a part time basis but under the control and supervision of an employer is a workman in term of Section 2(s) of the Act, and is entitled to claim the protection of Section 25F thereof, should the need so arise. The fact that the workman was working under the control and supervision of the appellant employer is admitted on all sides.

13. We also find that the preponderance of judicial opinion in the High Courts is also to this effect. As a sample we reproduce passages from two such judgments. A Division Bench of the Punjab and Haryana High Court in Simla Devi's case (supra), has observed as under:

"A plain reading of the definition of "workman" does not exclude the part- time workmen from the definition of "workman". Such exclusion cannot be read into it ipso-facto, except if it is expressly provided or implied that no other interpretation is possible, which is not the case in the case in hand. We find support for our view from the observations made by the Supreme Court in Birdhichand Sharma v. First Civil Judge, (1961-IILLJ-86), wherein the Supreme Court in facts and circumstances of the case, found that the workers even doing the job at their home are still workmen. Thus we are of the considered view that a part-time workman shall fall within the definition of "workman" and the finding returned by the Labour Court that a part-time worker is not a workman, cannot be sustained. We may hasten to add that

? nothing has been pointed out that on any principle of equity, justice, good conscience or the technical interpretation of the definition of workman that a part-time workman cannot be termed as a workman is unknown to the industrial world."

14. Likewise in G.M. Telecom, Nagpur's case (supra), it has been observed thus:

"The definition of `workman' as given in the Act does not make any distinction between full time employee and part time employee. It does not lay down that only a person employed for full time will be said to be a workman and that the one who is employed for part time should not be taken as a workman. What is required is that the person should be employed for hire to discharge the work manual, skilled or unskilled etc. in any industry. If this test is fulfilled, a part time employee can also be said to be a `workman'. Now, if this test is applied to the present case, it can very well be said that respondent No.

1, who was appointed as a part-time sweeper and was required to do manual and unskilled work is a `workman' within the meaning assigned to the said terms in the Act and as he worked for more than 240 days in a year, the provisions of Section 25F of the Act are applicable to the case in hand and as neither any notice, as contemplated under Section 25F of the Act, was served upon the respondent No.1 nor he was paid compensation in lieu of the said notice, nor was paid retrenchment compensation, it cannot be said that the provisions of Section 25F of the Act were duly complied with. It has been time and again held by this Court as well as by the Apex Court that the non-compliance of the mandatory provisions of Section 25F of the Act would render the termination of service void ab initio.

this view by a decision of the Apex Court in the case in Mohanlal vs. Management of M/s. Bharat Electronis Ltd., (1981) 3 SCC 225."

15. Similar views have been expressed in two Single Bench decisions of the Delhi High Court Coal India Ltd. and Kailash Chand Saigal (supra), by a Single Judge of the Gujarat High Court in Govind Bhai's case (supra) and a Division Bench of the Rajasthan High Court in Yashwant Sinha Yadav's case (supra). We are in respectful agreement with these opinions as well.

16. The question as to whether a part-time workman would be covered within the definition in ),. of the Act and whether he would be entitled to the benefit of continuous service under )@( and the benefit of )@:, is answered in favour of the workmanrespondent. The appeal is accordingly dismissed." %8 5 & )@:

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22.

Keeping in view the facts of the present case, i.e. the length of service and the fact that the workman was a part-time employee, it is not a fit case where the relief of reinstatement should be granted. Hence, we are of the considered opinion that awarding of the compensation to the appellant-workman would be just and equitable as a redressal to the infringement of her rights under the Act.

23.

With regard to the quantum of compensation, references can be made to the judgments of the Hon'ble Apex Court in Management,

Hindustan Machine Tools Ltd. vs. Ghanshyam Sharma 2018 (18) SCC 80, wherein for a period of 01 year, compensation of @0000L

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