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1970 DIGILAW 342 (ALL)

Automobile Karmchari Sangh v. Industrial Tribunal (II) Lucknow

1970-09-03

C.D.PAREKH

body1970
ORDER C.D. Parekh, J. - This writ petition has been directed against the award of the Industrial Tribunal (II), Lucknow, dated 13th of June, 1967, published in the UP Gazette dated 16th of September, 1967, Annexure II to the writ petition. 2. Petitioner No. 1 claims itself to be a registered trade union registered under the Trade Unions Act, 1926 and further claims that the workmen employed with M/s. Kanpur Auto Centre, Ghunniganj, Kanpur Respondent No. 2, are its members. Petitioner No. 2 claims itself to be the Federation of the Trade Unions with which the Petitioner No. 1 is affiliated and Petitioner No. 3 claims himself to be a workmen employed with Respondent No. 2 as Salesman and is also a Vice President of the Automobile Karmachari Sangh, Kanpur. 3. Briefly stated the case of the Petitioner is that there are 25 persons employed in the establishment run by Respondent No. 2 and they were so in the relevant year 1964-1965 and in those years they earned huge profits and were liable to pay bonus under the Payment of Bonus Act, 1965. They failed to pay the bonus and therefore, the State of UP u/s 4-K of the UP Industrial Disputes Act, 1947, referred this dispute for adjudication to Industrial Tribunal (II) under notification dated February 10, 1967, Annexure I to the writ petition. 4. During the course of the hearing before the Respondent No. 1 the Industrial Tribunal (II) it was contended by Respondent No. 2, the employers, that the number of the persons employed in the establishment was less than 20 in the relevant year i.e. 1964-1965 and therefore they were not covered by the provisions of Payment of Bonus Act and were nol: liable to pay any bonus to their employees. The Industrial Tribunal considered the fact and held on seeing the registers of Respondent No. 2 that in the year 1964 65 there were 17 persons working in the concern at a time and that the names of all these persons were recorded in the register of attendance maintained by Respondent No. 2. It was also held that from debit vouchers it becomes clear that payments were made to four other persons. Out of these four persons one Binda was paid Re. 1/- each for two fortnights of the month. It was also held that from debit vouchers it becomes clear that payments were made to four other persons. Out of these four persons one Binda was paid Re. 1/- each for two fortnights of the month. The employers tried to explain that Binda was a Jallad and he was paid this small amount for removing carcasses of animals which were found lying near about. This explanation was accepted and in my view, rightly by the Tribunal which held that Binda was not an employee working during the relevant period. Two persons named B.C. Saxena and Salig Ram Misra were paid some amounts for doing typing work and the payments made to them were shown as their salary. These persons were treated as regular employees in the month of January and the Industrial Tribunal added these two employees and held that thus there were 19 employees working with this establishment. There was one more employee viz., one Smt. Kallo. It was stated on behalf of the employers that she worked as sweeperess and was paid at the rate of Rs. 10/- per mensem. It was further contended that this sweeperess was a municipal employee and she wag employed by the Municipal Board as a whole time worker but she was employed by this establishment as a part time worker to do casual work. It has been held by the Industrial Tribunal that his sweeperess was doing part time work and casual work. It has further been held that she cannot be held to be an employee of the establishment within the meaning of Section 1(3)(b) of the Act. 5. The Industrial Tribunal has interpreted that the person working should be employed during the regular work of the establishment and part time and casual workers are not included for the application of the Act for the purposes of Section 1(3)(b) and it held further that this sweeperess is paid a small amount and she should not be deemed to be a person employed in the establishment. Clause (b) of Sub-section (3) of Section 1, shown off the irrelevant words, will read thus: (3) Save as otherwise provided in this Act, it shall apply to-- .... .... .... (b) every other establishment in which twenty or more persons are employed on any day during an accounting year. Clause (b) of Sub-section (3) of Section 1, shown off the irrelevant words, will read thus: (3) Save as otherwise provided in this Act, it shall apply to-- .... .... .... (b) every other establishment in which twenty or more persons are employed on any day during an accounting year. Learned Counsel for the Petitioners, therefore, argued before me that the Industrial Tribunal was not right in interpreting this clause to exclude within the expression of the word "employee" even casual or part time worker. He further stated that a sweeperess is not required for the whole period of the working hours. Her services are only required for purposes of sweeping at the fixed hours and if the sweeping is done at the fixed hours whether that employee is casual or part time it will not affect the applicability of the Act. It was an admitted fact on behalf of the employers that this sweeperess works as part time worker and does casual work, "employee" has been defined Under Sub-section (13) of Section 2. It means any person (other than an apprentice) employed on a salary or wage not exceeding one thousand and six hundred rupees per mensem in any industry to do any skilled or unskilled manual, supervisory, managerial, administrative, technical or clerical work for hire or reward, whether the terms of employment be express or implied. It does not exclude from its definition the casual or the part time workers. So if a person is employed or his services are hired for a part time even to do a regular work it cannot be said that that employee is not an employee of the establishment. It has been argued on behalf of the employers that the sweeping work is a casual work. I have not been able to appreciate how that sweeping work will be a casual work. It may be a part time work but not a casual work. Sweeping in an establishment cannot be said to be a casual work but must be a regular work because sweeping is carried out regularly of the premises and presincts. It is another matter that for the whole of the day sweeping of the premises may not be done because the sweeping is always done within the fixed hours. Sweeping in an establishment cannot be said to be a casual work but must be a regular work because sweeping is carried out regularly of the premises and presincts. It is another matter that for the whole of the day sweeping of the premises may not be done because the sweeping is always done within the fixed hours. Therefore, in my opinion the Industrial Tribunal was not right in holding that it was a part time work and that worker was not an employee of the establishment Respondent No. 2. This mistake appears to be apparent on the face of the record. 6. In view of my findings above I, therefore, hold that the award passed by Sri R.N. Sharma dated 30-6-1967 published in UP Gazette dated September 16, 1967 suffers from this illegality and the mistake in the award is apparent on the face of the record and is liable to be quashed. I, there fore, quash the award and remand the case to the Tribunal to reconsider the matter in the light of the observations made by me and dispose of the dispute according to law. 7. This writ petition is allowed. I make no order as to costs.