Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4445 OF 2006
Div. Manager, New India Assurance Co.Ltd. .......Appellant
Vs.
A. Sankaralingam ……Respondent
J U D G M E N T
HARJIT SINGH BEDI, J.
1. The facts leading to this appeal are as under:
2. The respondent–writ petitioner (hereinafter called the
nd
‘workman’) was appointed on 2 January 1986 as a
Sweeper-cum-Water Carrier in the Office of the Divisional
Manager, New India Assurance Company Ltd.,
Trivandrum Road, Tirunelveli (respondent No.2 in the
High Court) and herein called the “employer”, on a
monthly wage of Rs.130/-. He thereafter made a request
that his services be regularized but was on the contrary,
informed orally that he was not required to work with
2
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effect from 15 March 1989. He thereupon sought the
intervention of the appropriate Government praying for
his reinstatement, but conciliation efforts having failed,
the matter was referred to the Industrial Tribunal for
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decision. The Tribunal in its award dated 10 September
1998 held that the claimant before it, was not a
workman within the meaning of section 2(s) of the
Industrial Disputes Act, 1947 (hereinafter called the
“Act”) as he had worked only as a part-time employee
and that too on an ad-hoc basis. The Tribunal also
observed that as the duty hours of the workman were
only one or two hours a day for which he was paid a sum
of Rs.150/- p.m., and as he was entitled to work
elsewhere as well, revealed his status as such. The
workman challenged the award of the Tribunal before the
Madras High Court. The learned Single Judge held that
the fact that the workman had worked from the years
1986-1989 and as per the oral evidence, he had worked
in the office till 5’ O clock had been admitted and it thus
appeared that the finding that he was working only 2
3
hours a day was factually wrong. The learned Single
Judge further held that the point for decision was not the
workman’s plea for regularization but as to whether his
services had been wrongly terminated ignoring the
procedure for retrenchment envisaged under Section 25F
of the Act and as such, the retrenchment itself was bad
in law. The Court relied on section 2 (s) and Section 2B
of the Act to hold that these two definitions were not
restricted in applicability to only full time employees as
the all embracing tenor of the definition took within its
ambit even part time employees. The learned Single
Judge accordingly quashed the award of the Tribunal
and ordered the re-instatement of the workman with full
back wages and left the matter of regularization of
service to be considered by the employer in accordance
with law. This judgment was confirmed in appeal by the
Division Bench. Dissatisfied with the judgment of the
learned Single Judge, the employer is in appeal.
3.
Shri Atul Nanda, the learned counsel for the appellant
has first and foremost argued that the finding of fact
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arrived at by the High Court as to the status of the
workman was incorrect inasmuch as that in the
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application filed by the respondent on 30 May 1989
praying that his service be regularized, he had identified
himself as a part-time Sweeper-cum-Water Carrier and
in this background to hold that he was working on full-
time basis was contrary to the record. It has also been
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pointed that as per application dated 23 September
1991 addressed to the appellant by the President of the
District Committee for legal aid, the workman had been
employed only as a part time Sweeper. It has further
been submitted that the respondent was not entitled to
the benefit of Section 25 F of the Act as he was not a
workman within the meaning of Section 2(s) thereof as in
common understanding, a day must include a full day’s
work and not a part time employment. He has in this
connection referred us Shankar Balaji Waje vs. State of
Maharashtra 1962 (Suppl.) (1) SCR 249 in which the
scope of Section 79 of the Factories Act was under
consideration to plead that as this provision was
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analogous to Section 25 B of the Act in so far as the
requirement of 240 days of employment was concerned,
the workman was not entitled to any relief. He has also
pointed out that this Court in Uttaranchal Forest
Hospital Trust vs. Dinesh Kumar (2007) 13 SCALE
499 and in Ram Lakhan Singh vs. Presiding Officer,
Labour Court, Chandigarh 1989 Labour Industrial
Cases 1650, had considered the status of a part-time
Sweeper, (as in the present case) and had held that such
an employee could not claim the benefit of Section 25 F
of the Act.
4. As against this Mr. S.Guru Krishna Kumar, the learned
counsel for the workman has submitted that the
reference made to the Industrial Tribunal did not raise a
question as to the part-time or full time employment of
the workman and the learned Single Judge and the
Division Bench having both held on facts in his favour,
no interference was called for in this appeal. He has also
urged that Section 2(s) which defined a “workman”, and
Section 25B which talked of ‘continuous service’ did not
6
make any distinction between a part-time and full time
employee and if the Legislature intended to draw a
distinction between the two categories, the definition
would have been in different and positive terms. The
learned counsel has also pointed out that this Court in
Shri Birdichand Sharma vs. First Civil Judge, Nagpur
& Ors. 1961 (3) SCR 161 and in Silver Jubilee
Tailoring House & Ors. vs. Chief Inspector of Shops &
Establishments & Anr. (1974) 3 SCC 498, had
conclusively held that there was absolutely no distinction
between a full time and part-time employee and that a
workman who was working part time would not lose his
status as a workman if he was employed with more than
one employer. It has also been submitted that
preponderance of judicial opinion of various High Courts
was in favour of the above proposition of law and has
cited:
(a)Govind Bhai vs N.K. Desai (Gujarat High Court )
1988 Lab I.C. 505 (para 6)
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(b) Yashwant Sinha Yadav vs. State of Rajasthan
(Rajathan High Court ) 1990 Lab I.C. 1451 (para 9
to 15)
(c) Rajaram Rokde & Bros. vs. Shriram (Bombay
High Court) 1977 Lab I.C. 1594 (following the
decision in Silver Jubilee case supra – paras 2 & 5)
(d) Dr. P.N. Gulati vs. Labour Court, Gorakhpur
(Allahabad High Court) 1977 Lab I.C. 1088
(e)Simla Devi vs Presiding Officer 1997 (1) LLJ 788
(f) G.M. Telecom, Nagpur vs. Naresh Brijlal Charote
& anr. 2001 LAB I.C. 2127 Bombay High Court (at
para 11)
(g) Coal India vs. P.O. Labour Court 2001-II-LLJ 45
Delhi High Court (pat paras 7 and 8)
(h) Kailash Chand Saigal vs.Om Prakash & Ors.132
(2006) DLT 192 Delhi High Court (at paras 5 &
6 )”
5. We have heard the learned counsel for the parties and
gone through the record. It will be seen that the Single Bench
and the Division Bench of the High Court have both on a
consideration of the oral evidence as well as on the
documentary record, given categorical findings of fact on
8
admissions made in evidence that the respondent had worked
till about 5 p.m. every day but even otherwise we are of the
opinion in the light of the various decisions of the High Courts
and the Supreme Court, that a part time employee would be a
workman as understood in Section 2(s) thereof and would
have the benefit of Section 25F of the Act. It is also relevant
that the reference made to the Industrial Tribunal was as
under:
“Whether the claim of Sri A.
Sankaralingam that he was an employee
of New India Assurance Co. Ltd., from
2.1.86 to 15.3.89 as a Sweeper cum
Water Carrier is correct. If so, whether
the action of the management of New
India Assurance Co. Ltd., in terminating
his services w.e.f. 15.3.89 is justified?
What relief, if any, to Sri A.
Sankaralingam entitled to?”
6. From a perusal of the reference, it is evident that the
question as to the status of the workman as a full time or part
time employee was not in issue and the only dispute was as to
whether he was a workman with the appellant employer or
not. As already observed above, it has not been disputed
before us that the workman had indeed been employed but
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the dispute is only with regard to his status as a full time or a
part time employee.
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”. Section 2 (s) of the Act
deals with the definition of “workman” whereas section 25B
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
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(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 –
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(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
12
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
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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 Section 25B 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 Section 2(s) of the Act so as to claim benefit of
Section 25F thereof was being left open for future discussion.
As already held above on facts, we have endorsed the view of
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the High Court that the workman had, in fact, been working
virtually on a full time basis till 5 p.m. and had worked
nd
continuously for more than 3 years from 2 January 1986 to
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15 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
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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
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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
17
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-II-LLJ-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
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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
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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. I am fortified in
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 Section 2(s) of the Act
and whether he would be entitled to the benefit of
continuous service under section 25B and the benefit of
Section 25F, is answered in favour of the workman-
respondent. The appeal is accordingly dismissed.
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…………………………
….J.
( Tarun Chatterjee )
……………………………..J.
(Harjit Singh Bedi)
New Delhi,
Dated: October 03, 2008