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2011 DIGILAW 2691 (RAJ)

Kan Singh v. Distt. Ayurved Officer

2011-12-08

VINEET KOTHARI

body2011
JUDGMENT 1. - Heard learned counsels. 2. The workman has filed the present writ petition against the award dated 2/1/1998 in Industrial Dispute Case No.10/1995 decided by Industrial Tribunal, Bhilwara holding that the termination of the workman- Kan Singh from 18/11/1991 was valid and legal since the workman was employed in the respondent Ayurved Department only as part time workman for serving water to the visitors @ Rs. 5/- per day and without complying with the provisions of Section 25-F of the Industrial Disputes Act, his services were terminated on 18/11/1991, though he was initially appointed on 5/6/1984 and he remained there for about seven years. 3. The only contention which falls for consideration in the present case is as to whether the part timer like the present petitioner is a workman or not. The Division Bench of this Court in the case of Yashwant Singh Yadav v. State of Rajasthan & ors. - RLR 1989(1) 156 held that even part time employee is a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947. The relevant portion of the said judgment is quoted below for ready reference:- "17. We are unable to find ourselves in agreement with the view taken by a learned Single Judge in the aforesaid decision. The majority of the High Courts of the country as discussed above have taken the view that even a part time employee is a workman within the definition of the 'workman' as given in Section 2(s) of the Act. In our opinion, the definition of workman as given in Section 2(s) of the Act is comprehensive and wide enough to include even a part time employee. We are of the considered opinion that even a part time employee is covered by the definition of 'workman' as given in Section 2(s) of the Act. With all respects, we are unable to agree with the view expressed by the learned Single Judge of the A.P. High Court. 18. In the instant case, no doubt the petitioner was appointed as a part time employee. He is a workman as defined in the Act. The termination of his service amounts to retrenchment and the retrenchment was made in violation of the provisions of Section 25-F of the Act. He is, therefore, entitled to reinstatement." 4. The Hon'ble Supreme Court in Divisional Manager, New India Assurance Co. He is a workman as defined in the Act. The termination of his service amounts to retrenchment and the retrenchment was made in violation of the provisions of Section 25-F of the Act. He is, therefore, entitled to reinstatement." 4. The Hon'ble Supreme Court in Divisional Manager, New India Assurance Co. Ltd. v. A. Sankaralingam - (2009) 1 SCC (L & S) 55 held as under:- "The question for consideration is as to the status of a part-time employee whether such an employee falls within the definition of "workman Section 2(s) of the Act deals with the definition of "workman" whereas Section 25-B talks about "continuous service". A bare perusal of the two definitions reveals that their applicability is not limited to only full-time employees but requirement 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 25-F. That a workman employed on a part-time basis but under the control and supervision of an employer is a workman in terms of Section 2(s) of the Act, and is entitled to claim the protection of Section 25-F thereof. The preponderance of judicial opinion is that a workman working even on a part-time basis would be entitled to benefit of Section 25-F of the Act." 5. This Court also in Satya Narain Vaishnav v. RSRTC - SBCWP No.5040/2006 decided on 26/8/2010 held in para 12 & 13 as under:- "12. .........It is true that the daily wagers are not the holders of a post but the expression "condition of service" occurring in Section 33 (1) (a) is not restricted to the holders of post. The expression, "conditions of service" is of wide range and relates to the workmen who may be temporary, ad hoc, dailyrated, permanent, semi-permanent or otherwise. 13. Thus, sweep of the Hon'ble Apex Court's decisions definitely covers the present petitioners before this Court also, who were paid on the basis of job work or piece rate basis. While, it is true that the petitioners were asked to do this repair work only upon certain contingencies and upon change in the policy decision, such work was stopped; none-the-less the fact remains that petitioners were working as workmen in the establishment of the respondent- Corporation. While, it is true that the petitioners were asked to do this repair work only upon certain contingencies and upon change in the policy decision, such work was stopped; none-the-less the fact remains that petitioners were working as workmen in the establishment of the respondent- Corporation. Therefore, mode of payment on the basis of job work basis or piece rate basis would not alter the character of the workmen/industrial relationship between the petitioners and the respondent- Corporation. Therefore, as far as question of applicability of the provisions of Act of 1947 is concerned, it is undeniable that said provisions would definitely apply to he present workmen as well. Suffice it note here that even in the award dated 01.06.2006, learned Industrial Tribunal itself has returned a finding of fact in para Nos. 12 and 13 of the award that the petitioners were workmen of the respondent- Corporation and in fact they were entitled to be given minimum wages of the pay scale applicable to the Helpers regularly employed by the respondent- Corporation. As far as grant of regular pay scale of Helpers is concerned, learned counsel for the respondents contended that there is no question of grant of regular pay scale itself to the present petitioners. The said contention is bereft of context inasmuch as the learned Industrial Tribunal itself has only directed to give minimum of the pay scale applicable to the Helpers to the present petitioners and Tribunal has not directed to give the regular pay scale itself. 6. In view of the above, award of the Industrial Tribunal that petitioner workman is not entitled to the benefits of Section 25-F of the Act cannot be sustained and same deserves to be set aside and matter deserves to be remanded back to the Industrial Tribunal for decision afresh in accordance with law. 7. Consequently, this writ petition is allowed and award dated 2/1/1998 is set aside and Industrial Tribunal, Bhilwara is directed to decide the industrial dispute again in light of the aforesaid decisions within a period of six months from today. *******