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CIVIL SURGEON, AMRITSAR ETC. versus KASHMIR SINGH ETC.

High Court of Punjab and Haryana, Chandigarh

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CIVIL SURGEON, AMRITSAR ETC. v. KASHMIR SINGH ETC. - CWP-10975-2005 [2005] RD-P&H 56 (20 July 2005)

C.W.P. No. 10975 of 2005 Page

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Civil Surgeon, Amritsar etc. Vs. Kashmir Singh etc.

Present: Mr. C.M. Munjal, Sr. Addl. Advocate General, Punjab for the petitioners.

...

J.S. KHEHAR, J.

The petitioner management engaged Kashmir Singh, respondent workman, as a Safai Sewak at rates fixed by the Deputy Commissioner, on 30.6.1994. A copy of the appointment order issued by the petitioner management has been placed on the record of this case as Annexure P-2. The same is being extracted hereunder for facility of reference:- "Sh. Kashmir Singh son of Sh. Harman, village Rokhe, the. Ajnala, Distt. Amritsar is appointed as part time Safai Sewak till further orders and posted at PHC Ramdas. He will be paid the salary on fixed rates fixed by the Deputy Commissioner, Amritsar for part time safai Sewak during the year 1993-94. His services are liable to be terminated without any notice if his work and conduct is an unsatisfactory."

A perusal of the appointment order reveals, that the respondent workman was engaged as a part-time Safai Sewak, and that his services were liable to be terminated at any time without any notice, if his work and conduct was not satisfactory. In view of the terms and conditions of his appointment order, the C.W.P. No. 10975 of 2005 Page

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services of the respondent workman were terminated w.e.f. 26.3.1996. In order to assail the action of the petitioner management in terminating his services, the respondent workman issued a demand notice dated 10.8.1999 under Section 2-A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). On the failure of conciliation proceedings, the dispute raised by the respondent workman, was referred for adjudication to the Presiding Officer, Labour Court, Amritsar (hereinafter referred to as the Labour Court). The Labour Court recorded a finding of fact, that the respondent workman had rendered service for a period in excess of 240 days in the twelve calendar months preceding his retrenchment. Since neither notice preceding his retrenchment nor retrenchment compensation had been released to the respondent at the time when his services were dispensed with, the Labour Court arrived at the conclusion, that the action of the petitioner management was in violation of the provisions of Section 25-F of the Act. By an award dated 27.5.2004, the Labour Court answered the reference by ordering the reinstatement of the respondent workman with continuity in service and 50% back wages from the date of issuance of the demand notice.

Through the instant writ petition, the petitioner management has impugned the award of the Labour Court dated 27.5.2004. The solitary contention advanced on behalf of the petitioner management is, that the respondent workman being a part-time employee, did not fall within the definition of Section 2(s) of the Act and was, therefore, disentitled to any rights flowing from Section 25-F of the Act.

C.W.P. No. 10975 of 2005 Page

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It is not possible for us to accept, that a part-time worker does not fall within the definition of the term "workman" defined under Section 2(s) of the Act. The aforesaid provision is being extracted hereunder:- "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 express 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 as 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 C.W.P. No. 10975 of 2005 Page

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or by reason of the powers vested in him, functions mainly of a managerial nature."

Since, admittedly the respondent workman does not fall within those excluded from the term "workman" as it has been defined under Section 2(s) of the Act, the only exercise which has to be carried out while adjudicating upon the issue under reference, is whether the respondent workman was employed by the petitioner management to discharge duties of the nature defined therein.

Undoubtedly, the answer to the aforesaid query has to be in the affirmative.

Merely because the respondent workman was a part-time employee with the petitioner management, would not exclude him from the definition of the term "workman" under Section 2(s) of the Act, extracted hereinabove. The aforesaid view expressed by us hereinabove, has also been expressed by the Division Bench of this Court in Uttar Haryana Bijli Vitran Nigam and another Vs.

Presiding Officer and another (Civil Writ Petition No.7710 of 2004, decided on 17.5.2004), as well as, in Simla Devi Vs. Presiding Officer, Labour Court, Bathinda, 1997(1) Recent Services Judgments, 396.

It is also necessary for us to extract hereunder Section 25-F of the Act, which, according to the award of the Labour Court, is stated to have been violated by the petitioner management while retrenching the respondent workman from its employment w.e.f. 26.3.1996:- "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 C.W.P. No. 10975 of 2005 Page

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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 service on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette]." A perusal of Section 25-F of the Act also does not justify the cause of the petitioner management in any manner, since Section 25-F of the Act is also not limited to workmen employed on full-time basis. For purposes of the interpretation of Section 25-F of the Act, reference will have to be made to Section 2(s) of the Act, in order to determine the ambit and scope of the term "workman" used therein. Since we have already arrived at the conclusion, that a part-time employee is not excluded from the definition of the term "workman" as it has been defined under Section 2(s) of the Act, we are satisfied that a part- time employee is also entitled to rights and remedies delineated under the provisions of the Act.

Reference in this behalf may also be made to the decision C.W.P. No. 10975 of 2005 Page

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rendered by the Supreme Court in Express Newspaper Ltd. Vs. B.

Somayajulu, AIR 1964 Supreme Court 279, wherein the Supreme Court was dealing with the question as to whether the respondent could be a working journalist under the Industrial Disputes Act, 1955 (hereinafter referred to as the 1955 Act). Section 2(b) of the 1955 Act is being extracted hereunder:- " 'Working journalist' means a person whose principal avocation is that of a journalist and who is employed as such, in or in relation to, any establishment for the production or publication of a newspaper or in, or in relation to, any news agency or syndicate supplying material for publication in any newspaper, and includes an editor, a leader-writer, newseditor, sub-editor, feature-writer, copy tester, reporter, correspondent, cartoonist, newsphotographer and proof reader, but does not include any such person who_ (i) is employed mainly in a managerial or administrative capacity, or (ii)being employed in a supervisory capacity, 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." While recording its conclusions on the issue whether the respondent can be said to be a working journalist, after defining the essential ingredients of the term "Working Journalist", defined under Section 2 (b) of the 1955 Act, the Apex Court went on to determine whether a part-time employee fulfilling the ingredients of Section 2(b) of the aforesaid Act, would be a working journalist. In recording its conclusion, the Apex Court observed as under:- C.W.P. No. 10975 of 2005 Page

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".....Normally, employment contemplated by S.2 (b) would be full time employment; but part-time employment is not excluded from S.2 (b) either. Most of the employees falling under the first clause of S. 2(b) or even under the artificial extension prescribed by the later clause of S. 2 (b) would be full time employees. But it is theoretically possible that a news-photographer, for instance, or a cartoonist may not necessarily be a full time employee. The modern trend of newspaper establishments appears to be to have on their rolls full time employees alone as working journalists; but on a fair construction of S. 2(b), we do not think it would be possible to hold that a part time employee who satisfies the test prescribed by S. 2(b) can be excluded from its purview merely because his employment is part time."

In our view, the analogy adopted by the Supreme Court in the aforesaid case in connection with the definition of the term "working journalist" is fully applicable to the controversy in hand for determining whether a part-time workman would be included in Section 2(s) of the Act.

In view of the above, we find no merit in this petition. The same is, accordingly, dismissed.

( J.S. KHEHAR )

JUDGE.

(S.N. AGGARWAL)

JUDGE.

21.07.2005

C.W.P. No. 10975 of 2005 Page

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SK.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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