High Court of Punjab and HaryanaLPA/1915/2019allowed

Executive Engineer, Uttar Haryana Bijli Vitran Nigam Limited, Jhajjar v. Subhash And Another

2023-02-22Mr. Justice Gurmeet Singh Sandhawalia,Ms. Justice Harpreet Kaur Jeewan9 pages

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Municipal Council, Dina Nagar, Tehsil & District Gurdaspur vs. Presiding Officer, Labour Court, Gurdaspur and another , 2014 (4) SCT 514.

The learned Single Judge dismissed the review petition by observing that to review the order dated 12.03.2019, would amount to change of opinion and there is no valid reason to alter the decision which remains subject to appeal. The appellate Court could always alter the decision in exercise of the jurisdiction under Clause X of the Letters Patent. 8.

The learned Senior counsel for the appellant submitted that the dismissal of the writ petition, vide order dated 12.03.2019, and the review application dated 19.01.2019, is contrary to the decision of the Hon'ble Full Bench of this Court in Municipal Council Dina Nagar's case (supra). It was submitted that the workman was only working as a part-time employee for 1 hour a day and that too on daily wage basis, there was no

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permanent post for the same. As such the order of reinstatement is liable to be set aside.

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We have considered the aforesaid submissions. It is not disputed that the workman has worked continuously for 240 days preceding 12 months of his termination. This fact is evident from the admission of the witness of the management who appeared before the Tribunal, as well as from the attendance record produced before the Tribunal. Though the management has taken a plea in the written statement that the workman does not fall within the definition of "workman" in terms of the provisions of Section 2 (s) of the Act of 1947 but the said objection holds no water. The definition of the workman as given under Section 2 (s) of the Act reads as under:- -&)(+-* /

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In view of the said definition, respondent No. 1 falls within the definition of "workman" even though he was employed on daily wage basis. It has been held by the Apex Court in Divisional Manager, New India Assurance Co. Ltd. vs. A. Sankaralingam 2008 (4), RSJ 783 (SC), as also by this Court in Uttar Haryana Bijli Vitran Nigam Limited Bahadurgarh, District Jhajjar vs. Industrial Tribunal-cum-Labour Court, Rohtak and another 2009 (2) RSJ 766 (P&H) that even a parttime employee is also a workman as notified by the Labour Court also. / "

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Now the next question arises as to whether for violation of the provisions of Section 25-F of the Act, the workman who was a part-time employee on daily wage basis and not working on a permanent post, and there is nothing on record to suggest that he was employed by adopting a regular procedure of employment giving wide publicity, in such circumstances as to whether his retrenchment would compulsorily require reinstatement with continuity of service for redressal of his infringement of rights under the Act or only compensation can be paid to him in lieu of reinstatement? Section 25-F of the Act of 1947 reads as under:- "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 continuous 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]."

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Municipal Council, Dina Nagar's case (supra),

* "Thus the following principles are laid down:- (i) Keeping in view the recognised power of the Industrial Tribunal to direct reinstatement on account of the violation of Section 25-F of the Act the same cannot be denied solely on the ground that appointments were made by public bodies against public posts and were not in accordance with the relevant statutory recruitment rules.

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