Punjab-Haryana High Court
State Of Haryana vs Smt. Dulari And Another on 12 August, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Civil Writ Petition No. 8040 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 8040 of 2012
Date of Decision: August 12, 2013
State of Haryana
........Petitioner
Versus
Smt. Dulari and Another
.........Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Sunil Nehra, Sr. DAG, Haryana, for the
petitioner.
Ms. Abha Rathore, Advocate
for respondent No. 1.
*****
RAMESHWAR SINGH MALIK J. (ORAL)
This writ petition is directed against the award dated 13.12.2011 passed by learned Labour Court, Panipat, thereby directing the reinstatement of respondent No.1 with continuity of service and 50% back wages.
Brief facts of the case are that respondent No.1 was appointed as temporary part-time sweeper on 19.01.1998. She was not allowed to continue after 30.06.2003. No regular post of part-time sweeper was ever sanctioned by the competent authority. Feeling aggrieved, respondent No.1 raised an industrial dispute vide her demand notice (Annexure P-1) and petitioner-Management filed its written statement, vide Annexuere P-2. Reconciliation proceedings Anjal Gupta 2013.09.03 10:13 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 8040 of 2012 2 failed and the dispute was referred to the learned Labour Court. Parties led their respective evidence. After hearing the parties and going through the evidence brought on record, the learned Labour Court passed the impugned award dated 13.12.2011 (Annexuere P-
3), directing the reinstatement of respondent No.1 with continuity of service and 50% back wages from the date of demand notice i.e. 21.07.2003. Hence, this writ petition, at the instance of the Management.
Notice of motion was issued. However, no written statement was filed on behalf of the respondent No.1.
Learned counsel for the petitioner submits that respondent No.1 was admittedly engaged as a part-time sweeper for two hours daily, as per D.C. rates. No regular post of part-time sweeper was ever sanctioned by the State Government. He further submits that although respondent No.1 would be covered within the definition of a workman as provided under Section 2(s) of the Industrial Disputes Act, 1947 (for short 'the I.D. Act'), yet only for a limited purpose of establishing the relationship of employee and employer. The relationship between the petitioner-Management and respondent No.1, that of a employer and employee, had never been in dispute.
However, learned counsel for the petitioner while relying upon the judgment of the Hon'ble Supreme Court in (Uttaranchal Forest Hospital Trust Versus Dinesh Kumar) 2008(1) SLR 722, full bench judgment of this Court in (Gobind Vs. Presiding Officer, Anjal Gupta 2013.09.03 10:13 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 8040 of 2012 3 Labour Court and Another (2012) ILR 2 637), a Division Bench judgment of this Court in the case of (Indian Bank thorugh its Deputy General Manager Versus Smt. Maya Devi and another), CWP No. 11368 of 2007, decided on 27.08.2008 and judgment dated 18.03.2011 passed by this Court in CWP No. 20443 of 2006 (The S.D.O. (OP), Sub Division, DHBVNL, Jhoju Vs. Jagdish Rai and another), contends that respondent No.1 shall not be entitled for any benefit under the provisions of Chapter V-A & V-B of the I.D. Act. He further submits that since the learned Labour Court has misdirected itself while directing the reinstatement of respondent No.1 with 50% back wages, the impugned award was liable to be set aside. Finally, he prays for setting aside the impugned award by allowing the present writ petition.
Per contra, learned counsel for respondent No.1 submits that the impugned award was rightly passed by the learned Labour Court. There was no difference in the part-time worker or full time worker as ruled by Hon'ble Supreme Court in the cases of Anoop Sharma Vs. Executive Engineer Public Health Division No.1, Panipat (Haryan) 2010 (3) SCT 319 and Devinder Singh Versus Municipal Council, Sanaur, 2011(6) SCC 584. She further submits that since the writ petition was misconceived and the same may be dismissed.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, Anjal Gupta 2013.09.03 10:13 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 8040 of 2012 4 this Court is of the considered opinion that in view of fact situation of the present case, the instant writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.
It is an admitted position on record that respondent No.1 was appointed on part-time basis for two hours daily, as sweeper. The relationship of employer and employee is not in dispute. No regular post of part-time sweeper was ever sanctioned by the State Government. In such a situation, this Court finds force in the contention raised by learned counsel for the petitioner, that although respondent No.1 would be covered within the definition of a workman, for a limited purpose of relationship between employer and employee, which had never been in dispute in the present case, yet she will not be entitled for any benefit under Chaper V-A & 5-B of the I.D. Act. Termination of her services will not amount to retrenchment.
In identical circumstances, the Hon'ble Supreme Court in Dinesh Kumar's case (supra), observed as under:
"7.The basic difference between a person who is engaged on part-time basis or 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 worked more than 240 days is clearly belied.
8. 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 Anjal Gupta 2013.09.03 10:13 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 8040 of 2012 5 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/-"
Similar issue came up for consideration before the Hon'ble full bench of this Court in Gobind's case (supra). The full bench, after detailed deliberations on the issue and relying upon the law laid down by the Hon'ble Supreme Court, observed thus:-
"21. The ratio of the judgment in Birdi Chand's case (supra) was also applied by their lordships of the Supreme Court in Silver Jubilee Tailoring House's case (supra), to say that a piece rate worker/part time servant would fall within the definition of person employed as defined in Section 2(14) of the Andhra Pradesh Shops and Establishments Act, 1951. In the above said case, the Hon'ble Supreme Court was dealing with a dispute, which has arisen under the provisions of payment of Wages Act. In the above said case, it was noted that the workers were being paid on piece rate basis, generally attend the shop every day if there is work, rate of wages was not uniform, rather it was dependent upon the expertise of a particular worker. If stitching was not as per requirement, the employer had the authority to reject the work.
Workers were at liberty to come to the Factory at any time before Noon and some were also allowed to do stitching work from their houses. Their Lordships of the Supreme Court, by noting above said facts, observed thus:
33. That some of the employees take up the work from other tailoring establishment and do that work also in the shop in which they generally attend for work, as spoken to by the proprietor in his evidence, would not in any way militate against their being employees of the proprietor of the shop where they attend for work.
A person can be a servant of more than one employer. A servant Anjal Gupta 2013.09.03 10:13 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 8040 of 2012 6 need not be under the exclusive control of one master. He can be employed under more than one employer. (See "The Modern Law of Employment" by G.H.L. Fridman, p. 18 and Patwardhan Tailors, Poona Vs. Their Workmen, (MANU/MH/0230/1959: 1960 (1) L.L.J. 722, 726).
34, That the workers are not obliged to work for the whole day in the shop in 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 regualar part time service can be considered even prima facie to suggest anything other than a contract of service. According to the definition in S. 2(14) of the Act, even if a person in 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." The Hon'ble Full Bench concluded as under:
"51 In view of the facts mentioned above, we can safely say that a part time worker, who works only for a part of the day, will not be in a position to complete even fictional year as envisaged under Section 25B of the I.D. Act i.e. 240 days in 12 months preceding the relevant date. Not only this, we feel that it will be very difficult to give any benefit to a part time worker under Chaper VA and VB of the I.D. Act. As in the present case, the petitioner was working only for two hours in a day with the respondent employer, there is no restriction and he can work with any number of 71 years, during rest of the day. As per established law, as discussed in earlier part of the judgment, an employee can be asked to work only for 48 hours in a week i.e. 8/9 hours in a day. For the sake of discussion, if we presume that a part time worker, who works only for two hours with one employer, after working with four employers, engaged himself with the 5th and 6th employer for the work and if 5th and 6th employers Anjal Gupta 2013.09.03 10:13 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 8040 of 2012 7 terminate his service, it will not be possible for the Labour Court to reinstate him in service because with those employers, he was working beyond the period prescribed. Furthermore, as per provisions of Factories Act and 1950 rules, an employee is entitled to get extra wages if he works beyond the number of hours prescribed in a day when a part time worker engages himself beyond the period of 8/9 hours in a day, from that employer at what rate he will get the wages, whether at the normal rate or at the rate which is fixed for working over time. We have also noticed that a part time worker can get employment with as many number of employers as he wishes to. He can even work with those employers who are competing with each other. In the case of appointment of a part time worker, concept of exclusive employment, which is the most important ingredient in case of a regular employee, is completely missing.
52. In view of ratio of the judgments, referred to above, status of permanence cannot be granted to a part time worker. To the contrary, if he/she is held entitled to get benefit under the provisions of Section 25-F of the I.D. Act, it mens his service cannot be terminated, even if, he is not upto the mark, till such time retrenchment compensation is paid to him. Similarly, under Section 25-G of the Act, his service cannot be terminated until his juniors are allowed to work even though, they may be very efficient workers. In case of retrenchment, the part-time worker may have right to get re-employment in view of provisions of Section 25-H of the I.D. Act. If it is held that he is entitled to all above mentioned benefits, it would amount to giving him status of permanence, which, we feel, was not intention of the framers of the Act. Accordingly, we feel that judgments, in the case of Mange Ram's case (supra) and Shimla Devi's case (supra) do not lay down the correct law. We are in agreement with opinion expressed by a Division Bench of this Court in Ram Lakhan's case(supra).Anjal Gupta 2013.09.03 10:13 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 8040 of 2012 8
53. In view of facts mentioned above, we conclude that a part time; worker would fall within the definition of a workman as postulated under Section 2(s) of the I.D. Act. However, nature of his employment will be that of a contractual employee and employer be at liberty to terminate him and his termination would not entitle him to get any benefit under the provisions of Chapter VA and VB of the I.D. Act. It is further clarified that to enforce rights and obligations arising under contract of employment, may be in writing or oral, the part time worker may invoke the provisions of I.D. Act other than contained in Chapter VA and VB of the Act."
The abovesaid judgments of the Hon'ble Supreme Court in Dinesh Kumar's case (supra) as well as full bench judgment of this Court in Gobind's case (supra), were followed by a Division Bench of this Court in Maya Devi's case (supra). It was observed as under:-
The view taken by the Labour Court is not tenable. Hon'ble Apex Court, in Uttranchal Forest Hospital Trust v. Dinesh Kumar (2008)1 Supreme Court Cases 542 held that part-time worker is not entitled to retrenchment compensation. This view has also been reiterated by a Full Bench of this Court in Gobind v. The Presiding Officer, Labour Court, Jalandhar and another in CWP No. 4660 of 1999 decided on 22nd May,2008, wherein it has been held as under:
"In view of facts mentioned above, we conclude that a part time worker would fall within the definition of a workman as postulated under Section 2(a) of the I.D. Act. However, nature of his employment will be that of a contractual employee and employer be at liberty to terminate him and his termination would not entitle him to get any benefit under the provisions of Chapter VA and VB of the I.D. Act. It is further clarified that to enforce rights Anjal Gupta 2013.09.03 10:13 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 8040 of 2012 9 and obligations arising under contract of employment, may be in writing or oral, the part time worker may invoke the provisions of I.D. Act other than contained in Chapter VA and VB of the Act."
In view of the authoritative pronouncement of Hon'ble Apex Court and the view taken by a Full Bench of this Court in Gobind's case (supra), we have no other option except to allow the present writ petition and set aside the impugned award."
The full bench judgment in Gobind's case (supra) was also followed in Jagdish Rai' case (supra). In view of the law laid down by the Hon'ble Supreme Court in Dinesh Kumar's case (supra), by the Hon'ble Full Bench of this Court in Gobind's case (supra) as well as by the Division Bench of this Court in Maya Devi's case (supra), this court feels no hesitation to conclude that the impugned award passed by learned Labour Court cannot be sustained. Learned labour Court misdirected itself while not appreciating the true factual as well as legal position before passing the impugned award.
So far as the judgments relied upon by learned counsel for respondent No.1 in Devinder Singh's case (supra) and in Anoop Sharma's case (supra) are concerned, the same are clearly distinguishable on facts. The issue involved in the present writ petition was not subject matter of consideration before the Hon'ble Supreme Court in both these cases. Further, Dinesh Kumar's case (supra) has not been considered in either of these two cases i.e. Devinder Singh's case (supra) and in Anoop Sharma's case (supra), again for the reason that both these cases were involving entirely a Anjal Gupta 2013.09.03 10:13 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 8040 of 2012 10 different set of facts.
It is settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002(3) SCC 533.
Recapitulating the facts of the present case and respectfully following the law down by the Hon'ble Supreme Court in Dinesh Kumar's case (supra) and Hon'ble Full Bench as well as Division Bench of this Court, it is unhesitatingly held that since the impugned award passed by learned Labour Court is contrary to the law laid down by the Hon'ble Supreme Court in Dinesh Kumar's case (supra) as well as Full Bench and Division Bench judgments of this Court in Gobind's case (supra) and Maya Devi's case (supra), the same cannot be sustained.
No other argument was raised.
Considering the facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that in the given circumstances of the present case, the instant writ petition deserves to be allowed. Thus, the impugned award dated 13.12.2011 (Annexure P-3) passed by learned Labour Court, is hereby ordered to be set aside.
Anjal Gupta 2013.09.03 10:13 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 8040 of 2012 11
Resultantly, the present writ petition stands allowed, however, with no order as to costs.
August 12, 2013 (RAMESHWAR SINGH MALIK)
ANJAL JUDGE
Anjal Gupta
2013.09.03 10:13
I attest to the accuracy and
integrity of this document
high court chandigarh