Gujarat High Court
Tourism Corporation Of Gujarat Ltd. vs Kalu Valji Jethwa on 23 November, 2007
Equivalent citations: (2008)1GLR12, (2008)ILLJ985GUJ, 2008 LAB. I. C. 545, 2008 (2) AJHAR (NOC) 387 (GUJ), 2008 (2) AJHAR (NOC) 387 (GUJ.) = 2008 LAB. I. C. 545 FULL BENCH, 2008 (2) AIR KANT HCR 227, (2008) 1 GUJ LR 12, (2008) 1 CURLR 566, (2008) 1 LAB LN 565, (2007) 3 GUJ LH 711, (2008) 117 FACLR 408, (2008) 2 SCT 462, (2008) 4 SERVLR 186, (2009) 2 SERVLJ 37
Author: K.S. Jhaveri
Bench: M.S. Shah, K.S. Jhaveri
JUDGMENT K.S. Jhaveri, J.
1. The question referred A Division Bench of this Court has referred the following question for our consideration:
Whether a part-time employee is a "workman" and whether he is entitled for all the benefits which are being extended to regular employees.
2. Factual matrix 2.1 The appellant herein - Tourism Corporation of Gujarat Ltd ("TCGL" or "the appellant") is a Government Company registered under the Companies Act, 1956.
The respondent herein was appointed by the appellant Corporation as a part-time sweeper in its Junagadh Hotel for a fixed period upto December 1987. Therefore on 31st December 1987 his services came to an end. In the year 1996, the respondent raised an industrial dispute, contending that his services had been illegally terminated. The dispute was referred to the Labour Court, Junagadh which was registered as Reference (LCJ) No. 57 of 1996. After hearing the parties, by award dated 24th May 2001, the Labour Court directed the appellant herein to reinstate the respondent within 30 days from the date of the award.
2.2 The appellant Corporation, therefore, filed Special Civil Application No. 8847 of 2001 before this Court challenging the award passed by the Labour Court. By judgment dated 3.4.2002, the learned Single Judge, after hearing the parties at length and after considering various decisions, directed the appellant Company to appoint the respondent workman as a fresh employee as per the direction issued by the Labour Court within a period of one month from the date of receiving copy of the said order. It was further directed to pay full current wages to the respondent workman with effect from the date of the award (24th May 2001) till the date of actual reinstatement within a period of two months from the date of receipt of copy of the said order. It is against the said decision that this Letters Patent Appeal came to be filed by the appellant Corporation.
2.3 During the course of hearing a question arose as to whether a workman employed as a part-time employee is a "workman" and whether he is entitled to all the benefits which are being extended to regular employees. The Division Bench considered the decisions in the cases of Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops and Establishments and Anr. 1973 II LLJ 495, Govindbhai Kanabhai Maru v. N.K. Desai 1988 Labour & Industrial Cases 505 and Arun Mills Ltd. v. Dr. Chandraprasad C. Trivedi 1976 GLR 291 and expressing a prima facie view that a part time employee cannot be considered as "workman" within the meaning of Industrial Disputes act, requested the learned Chief Justice to refer the matter to a Larger Bench. That is how the appeal was placed for hearing before this Bench.
Submissions on behalf of Appellant Corporation
3. Based on statutory provisions 3.1 On behalf of the appellants it is submitted that as per Section 2(s) of the Act, a "workman" only means a person appointed on full-time basis and would not include a person, who is appointed on part-time basis. According to the learned Counsel for the appellant Corporation, if a part-time employee is taken to be a workman, then it would lead to administrative chaos, because a person, who is working as a part timer with different institutions/organizations would claim permanency and all other benefits at different places. It is submitted that if a person is engaged as a daily wager on part-time basis, when he is discharged from service upon the contract coming to end, it would not amount to retrenchment.
3.2 In case of a person who works or is engaged on part-time basis, there would be a presumption, though rebuttable by the person working part time, that he is engaged in some gainful activity, either by way of self-employment or with other employer, during the rest of the day. Therefore, unless the said person establishes that he is not gainfully employed with another employer or unless the said person, though working part time, is working for substantial part of the entire working time of the employer/establishment, a part time worker would not be covered within the term "workman".
3.3 The scheme of the Act also does not contemplate a part time worker as workman for the purposes of the Act. This could be illustrated from definition of lay off in Section 2(kkk) and Section 25C.
(a) The provisions relating to lay off empower the employer to lay off his workman from half of the day and to pay him compensation accordingly. This would be possible only in case of person who works for whole time and not part time.
(b) After defining "lay-off" as a failure, refusal or inability of an employer to give employment to a workman on the muster rolls of his industrial establishment on account of shortage of raw materials, fuel, etc. and for reasons beyond his control, the explanation provides that it will also amount to lay off if the workman presents himself for work on the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself and that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself during the second half of the shift for the day and is given employment then, the workman shall be deemed to have been laid off only for one-half of that day and shall be entitled to pay and wages accordingly. If the workman is not given any such employment even after presenting himself in the second half of the shift, the workman shall be entitled for full wages. It is, therefore, submitted that these provisions contemplate applicability only to a workmen working for the entire normal working hours of the establishment and not to a part-time employee.
3.4 Even subsequently inserted provisions of Section 17B also indicate that the Act does not apply to a part time worker who gainfully engages himself elsewhere/with another employer. The said Section expressly rules out the situation where the workman may claim payment from one employer (or erstwhile employer) despite being gainfully engaged elsewhere. The above provisions reveal the scheme of the Act that a person working part time with two employers would not be covered within the purview of the Act.
3.5 The Hon'ble Supreme Court has in Sandoz (India) limited and Ors. (1994) 5 SCC 737, rejected the contention that all persons who do not fall under the specifically provided exceptions in Section 2(s), will be treated as workmen. Thus, a part time worker would not be presumed to be included within the scope of Section 2(s) merely because a part time worker is not specifically mentioned in the exclusion clause enumerating four categories. This decision is an answer to the submission on behalf of the workman on the basis of an assumed rule of statutory interpretation in general that since a part time worker is not excluded, he would stand included.
3.6 The submission that if a part time worker is not considered as included within the scope of Section 2(s), then part time worker would be left out of the protection, overlooks the fact that the Act itself excludes various categories of working persons e.g. persons in supervisory category drawing less than Rs. 2500/- salary are included but those drawing salary of more than Rs. 2500/- are excluded. Further, in the above referred judgment of Sandoz, the Hon'ble Supreme Court has held that protective umbrella need not cover all workmen doing a particular type of work. Thus, which categories of workers should come under the protective umbrella of the Act is a matter which should be left to the Legislature.
3.7 The submission that the scheme of the Act does not include a part time worker can be noticed from the contradistinction of the definition of the term "working journalists" under the provisions of the Working Journalists and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955 wherein even though a person who is employed either whole time or part time but whose principal avocation is of a journalist, is included in the definition of working journalist. Meaning thereby, where the statute intended to include a part time worker also within the purview of the Act along with a whole time worker, the Legislature has provided so expressly. In the present Act, it is not so included which indicates that the object of the Act was not to include part time workers within its scope.
4. Appellant - employer's submissions Based on Control & Integration Tests To determine as to whether a worker not working whole time with an employer/organization but working only part time would be covered within the scope of the Act, the control test and the integration test will have to be simultaneously fulfilled. In other words, it would be required to determine as to whether both tests are simultaneously satisfied by the concerned person or not.
4.1 In case of a part time worker with two employers there would be "dual control" i.e. control by two employers over the same person. Besides in practice also it would cause functional problems. Illustratively speaking - one of the employers may require such part time worker to work over time during same time when the second employer requires services of that person. The control test signifies and contemplates that the employer would have control/supervision over the employee for the entire working hours of the establishment and not only for a part of the total working hours. The person with regard to whom the control test is not satisfied would not fall within the purview of the expression "workman".
4.2 A person not working full time but working part time could fulfill the integration test only if he works with a particular employer for substantial span of that particular employer's normal working hours.
A person can be said to be fulfilling the integration test if -
(i) he works for substantial quantum/length of normal working time/hours of particular organization/employer e.g. 75% of total working time (on the analogy in case of Sandoz);
(ii) he is engaged to do the work which is the principal work of the employer/organization.
(iii) he is subject to similar controls, conditions, rules, etc. which apply to those employees who work whole time with the employer/organization.
4.3 Not only persons with specialized or high skills but even persons doing ministerial work like class IV employees who are engaged only part time, for work like sweeping, dusting, would also not be covered within the purview of the definition of workmen as they would not be under the control of the employer for the whole of the working time of that employer, nor would they be doing work integral with the core activities of the employer.
4.4 To consider a person working only part time, if treated as a workman of a particular employer for purposes of one statute, would not automatically or ipso facto make him an employee/workman for the purposes of other statutes, and in each case it would be required to be determined in light of the specific provisions under the relevant Act and broad tests which may be laid down by the Court.
5. Appellant - employer's submissions based on Anomalies likely to result from acceptance of the respondent's case The general submission that a person working part time, is a workman under the Act, does not hold good also for the reason that such a general proposition is likely to lead to various anomalous or conflicting situations e.g
(i) a person who meets with an accident may claim compensation from two employers. In case of accident, it would be difficult to determine as to which one of the employers would be responsible for payment of compensation,
(ii) in the event of breach of the provisions prohibiting working of more than 9 hours by a person, which one of the two or more employers would be held responsible.
(iii) a conflicting and anomalous situation is also likely to arise in view of provisions/notifications under the Minimum Wages Act inasmuch as per notifications under the Act, a person who is engaged for more than 4 hours, is entitled for full salary i.e. salary for the full day/whole time. Consequently, where a person works for four and half hours at two places i.e. with two employers, then he would claim full wages from both the employers. Consequently, a part time worker would get the same full wages from an employer which the full time worker with that employer would be getting. This would put the whole time worker in a disadvantageous position.
There could be other anomalies which are likely to arise in a situation where a person engages himself at several places on part time basis i.e. (i) a situation where an employee works at two different places for 41/2 hours and at the third place for 2 hours; (ii) a situation where a person is engaged part time e.g. from 9 a.m. to 1 p.m. and is a house worker for some other employer and the times may be coinciding or overlapping; and (iii) a person engaging himself for 5 hours at two difference places where normal working hours are 8 hours.
6. Submissions on behalf of the Respondent - workman 6.1 The definition of "workman" is all inclusive. Wherever the Legislature intended to exclude any category, such categories are specifically excluded. Part-time workman is not to be found in excluded categories. Hence, a part-time workman is also as much a workman as any other workman. Reliance is placed on several decisions of various High Courts in support of this submission.
6.2 The fact that a workman is/was rendering part-time services may have some bearing on the nature of remedy or relief sought but not on his status as a workman.
Examples:
1. Stenographer
2. Domestic Servant
3. Sweepers 6.3 According to learned Counsel for the respondents, the following are not determinative or relevant:
1. place of work i.e. Factory, home, outside place.
2. skill or status
3. Basis for payment of wages - piece rated or time rated can be more/less than usual working hours.
4. Number of hours/short duration.
5. Master-servant relationship.
6. 2-part time employments or more
7. Single-source of income
8. Freedom to take second job.
9. Integral part of business.
Statutory Provisions - Definition of "workman" under different Labour Legislations
7. Before deciding the present controversy under the Industrial Disputes Act, 1947 an important aspect with regard to the relationship of master and servant and employment is required to be considered with reference to the definitions of "worker", "Workman", "employee", under different labour legislations.
7.1 "Workman" is defined under Industrial Disputes Act, 1947 as under:
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 or as an officer or other employee of a person; 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.
7.2 The definition of 'Worker' as contained in Factories Act, 1948 reads as under:
2(1) 'Worker' means a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process (but does not include any member of the armed forces of Union). 7.3 "employee" is defined under Minimum Wages Act, 1948 as under:
2(i) 'Employee' means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out-worker or in some other premises not being premises under the control and management of that other person, and also includes an employee declared to be an employee by the appropriate Government; but does not include any member of the Armed Forces of the Union.
7.4 The term "employee" is defined under Payment of Bonus Act, 1965 as under:
2(13) 'Employee' means any person (other than an apprentice) employed on a salary or wage not exceeding three thousand and five hundred rupees per mensem in any industry to do any skilled or unskilled manual, supervisory, managerial, administrative, technical or clerical work of hire or reward, whether the terms of employment be express or implied. 7.5 Under Payment of Gratuity Act, 1972, the term "employee" is defined as under:
2(e) 'Employee' means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or electrical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.
7.6 Under Workmen's Compensation Act, 1923, "workman" is defined as under:
2(n) 'Workman' means any person who is:
(i) ...
(ii) employed in any such capacity as is specified in Schedule II whether the contract of employment was made before or after the passing of this act and whether such contract is express or implied, oral or in writing;....
7.7 Similarly, the definitions of "employee" under Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and the Employees State Insurance Act, 1949 are in similar wide terms.
Section 2(9) of the latter Act goes on to provide that "employee" includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment or any person engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), or under the standing orders of the establishment; -
7.8 Under Bombay Shops and Establishments Act, 1948, "employee" is defined as under:
"Employee" means a person wholly or principally employed, whether directly or through any agency and whether for wages or other consideration, in or in connection with any establishment; and includes an apprentice but does not include a member of the employer's family;
7.9 In (the) Working Journalist and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, "newspaper employee" is defined as "any working journalist, and includes any other person employed to do any work in, or in relation to, any news paper establishment". "Working journalist" is defined as Sa person whose principal avocation is that of a journalist and who is employed as such, either whole time or part time, in, or in relation to, one or more newspaper establishment, and includes an editor,...cartoonist, news photographer...,but does not include any such person who....
8. Definitions of "wages" under different labour laws are as under:
8.1 Under Industrial Disputes Act, 1947, "wages" is defined as under:
2(rr) 'Wages' means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, express implied were fulfilled, be payable to a workman in respect of his employment, or of work done in such employment, and includes -
[i] Such allowances (including dearness allowance) as the workman is for the time entitled to:
[ii] The value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles; [iii] Any traveling concession;
[iv] Any commission payable on the promotion of sales or business or both;
but does not include -
(a) any bonus;
(b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;
[c] any gratuity payable on the termination of his service.
8.2 Under Minimum Wages Act, 1948, Payment of Bonus Act, 1965, Payment of Gratuity Act, 1972, Payment of Wages Act, 1936, Working Journalists & Other newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, Workmen's Compensation Act, 1923, Employees' Provident Fund and Miscellaneous Provisions Act, 1952 and Employees' State Insurance Act, 1948, the substantive definition of "wages" is the same as except a few changes in the excluded categories.
9. Different Categories of Contracts
9. Contracts in relation to labour force can be divided into two categories i.e. contract for service and contract of service. Contract of service can be further divided into Contract Labour and Direct Labour. Contract labour may be further divided into piece rated workmen and time rated workmen. Piece rated workmen may be further sub-divided into factory based workers, home based workers and outdoor workers. Time rated workmen may be divided into full time or part-time. Even part-time workmen may have working hours ranging from one hour to seven hours a day. Wages for workers depend on the number of working hours and also usage or practice in the establishment i.e. office, factories, Banks, etc. at the given time, and also on the time frame in relation to employment - e.g. whether full time employee, part-time employee, etc.
10. What is part-time employment?
For how may hours a day the workman has to work to qualify to be called a full time workman ?
10.1 'Employment' is defined in the Oxford English Dictionary, Second Edition (Volume V) as under:
The action or process of employing, the state of being employed. A person's regular occupation or business; a trade or profession.
10.2 Wikipedia, the free encyclopedia refers to the 19th Century conditions where a workman had to work for twelve to sixteen hours a day, and then points out that the international Workingmen's Association took up the demand for an eight-hour day at its convention in Geneva in August 1866 declaring that the legal limitation of the working day is a preliminary condition without which all further attempts at improvements and emancipation of the working class must prove abortive and the Congress proposes eight hours as the legal limit of the working day. Although there were initial successes in achieving an eight-hour day in New Zealand and by the Australian labour movement for skilled workers in the 1840s and 1850s, most employed people had to wait till the early and mid twentieth century for the demand to be widely accepted throughout the industrialized world through legislative action. The Eight hour day move forms part of the early history for the celebration of Labour Day, and May Day in many nations and culture.
10.3 Now we may turn to the provisions of the Factories Act, 1948, which provide for the maximum working hours.
51. Weekly hours - No adult worker shall be required or allowed to work in a factory for more than forty-eight hours in any week.
52. Weekly holidays - (1) No adult worker shall be required or allowed to work in a factory on the first day of the week (hereinafter referred to as the said day), unless he has or will have a holiday for a whole day on one of the three days immediately before or after the said day, subject to the manager of the factory delivering a notice at the office of the Inspector of his intention to require the worker to work on the said day and displaying a notice to that effect in the factory.
Provided that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day.
(2) *** *** ***
54. Daily hours - Subject to the provisions of Section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day:
Provided that, subject to the previous approval of the Chief Inspector, the daily maximum hours specified in this section may be exceeded in order to facilitate the change of shifts.
55. Intervals for rest (1) The periods of work of adult workers in a factory each day shall be so fixed that no period shall exceed five hours and that no worker shall work for more than five hours before he has had an interval for rest of at least half an hour.
Sub-section (2) permits the State government/Chief Inspector for reasons to be recorded, to increase the period to maximum six hours.
56. Spreadover - The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest under Section 55, they shall not be spreadover more than ten and a half hours in any day:
Provided that the Chief Inspector may, for reasons to be specified in writing, increase the spreadover upto twelve hours.
57. Night shifts - Where a worker in a factory works on a shift which extends beyond midnight-
(a) for the purpose of Sections 52 and 53, a holiday or a whole day shall mean in his case a period of twenty four consecutive hours beginning when his shift ends;
(b) the following day for him shall be deemed to be the period of twenty-four hours beginning when such shifts ends, and the hours he has worked after midnight shall be counted in the previous day.
58. Prohibition of overlapping shifts: (1) Work shall not be carried on in any factory by means of a system of shifts so arranged that more than one relay of workers engage in work of the same kind at the same time.
Sub-section (2) permits the State Government/Chief Inspector to grant exemption from the terms of Sub-section (1).
59. Extra wages for overtime - (1) Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in a week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages.
(2) to (5) ...
10.4 The Desai Award discussed the issued relating to "Part-Time Employees" as under:
1.191. The Sastry Tribunal in paragraph 123 of its award has observed that part-time employees cannot expect payment at the full rates provided by it. It fixed for them a minimum of one-third of the appropriate rate of pay and dearness allowance of full time employees if such part-time employees worked for not less than 7 hours per week. That Tribunal did not think it appropriate to lay down a more detailed graduated scale in accordance with the hours of work. The All India Bank Employees Association has claimed that there should be no part-time employees. Those who are required to work for not more than three hours a day should at least be granted 50 per cent of the scales demanded for full time employees. Demands have also been made by the All India Bank Employees Federation, the All India State Bank of India Staff Federation and the State Bank of India Staff Union, Andhra Pradesh, and others with a view to achieving improvements in the present conditions of service of this category of employees. These claims made on behalf of the workmen have been opposed by the banks. There does not appear to be any cogent reason for acceding to the demands of the workmen in this connection. In the present state of the record it is not possible for me to give any directions other than those given under the Sastry Award. I direct that a minimum of one-third of the appropriate rate of pay and dearness allowance should be given to part-time employees if such part-time employees work for not less than 7 hours per week, it being the minimum prescribed for them.
11. Law in USA At this stage, it would also be profitable to look into the USDA Work Life Programms and Services, wherein Part-time employment is defined and explained as under:
11.1 A permanent part-time employee has a career or career-conditional appointment (or a permanent appointment in the excepted service) is eligible for fringe benefits, and works between 16 and 32 hours each week on a prearranged schedule. For employees who cannot continue to work full-time, part-time is a way to maintain a career and an income. It is also a job sharing arrangement. Job sharing is a form of part-time employment in which the schedules of two part-time employees are arranged to cover the duties of a single full-time position. For example, each job sharer may work a portion of the day or week. Apart from providing opportunity for employees to work part-time in positions where full-time coverage is required, job sharing provides management with extra flexibility. The team members may have different strengths, they are able to fill-in during each other's absences; and both may be able to work extra hours when there are unexpected workload surges. It is required to be noted that any job may be filled by a part-time employee or a team of job sharers when the arrangement meets the needs of the office and the employee(s).
11.2 The moot question is whether fringe benefits are available to a part-time employee or not. Permanent part-time employees are eligible for the same benefits as full-time employees. Both part-time and job sharing employees enrolled in the Federal Employees Health Benefits Program receive the same coverage as full-time employees but pay a greater percentage of the premium; this occurs due to prorating the Government's share based on the number of hours the employee is scheduled to work each week. For example, an employee on a 20-hour-per-week schedule receives one-half the Government contribution towards the premium. As regards pay, leave and holidays are concerned, gross pay is computed by multiplying the employee's hourly rate by the number of hours worked during the pay period. Overtime rates (for employees not working alternative work schedules) apply only to regular hours in excess of 8 in a day or 40 in a week. Non-overtime hours above those normally scheduled are paid at the basic rate.
11.3 Annual leave is earned based on the number of hours worked per pay period. An employee with less then 3 years of service earns 1 hour of leave for each 20 hours worked; with 3 to 14 years of service 1 hour for each 13 worked; and with 15 or more years of service, 1 hour for each 10 hours worked. All part-time and job sharing employees earn 1 hour of sick leave for each 20 hours worked and are also eligible for other kinds of leave. If a holiday falls on a day the employee normally works, the employee is paid for the number of hours he or she was scheduled to work.
11.4 It is also a fact that part-time employees are eligible to compete for part-time as well as full-time positions. Part-time employees who are job sharing may apply and be considered as a team, but each must be among the best qualified in order for the team to be selected.
11.5 According to the report a part-time employee earns a full year of service credit for each calendar year worked (regardless of schedule) for the purpose of computing dates for retirement eligibility, career tenure, completion of probationary period, within-grade pay increases, change in leave category, and time-in-grade restrictions on advancement. However, part-time work is prorated for determining qualifications. For example, an employee who works 20 hours per week would have 6 months of experience at the end of 12 months.
11.6 As regards retirement annuities is concerned, each year of part-time service counts as 1 full year toward the length of service requirement but is prorated for annuity calculation. Under the Feral Employees Retirement System, all part-time service is prorated. For employees under the Civil Service Retirement System, part-time service performed on or after April 7, 1986, is prorated.
11.7 It is also required to be noted that part-time employees have the same rights as full-time employees when disciplinary action is taken against them. The reduction in scheduled hours is not subject to adverse action procedures. In a reduction in force, part-time and job sharing employees have assignment rights only to part-time positions. Similarly, full-time employees have assignment rights only to full-time positions.
12. Law in other countries Part-time employment is recognised in Australia and their concept about part-time is as under:
12.1 Regular part-time work is one of a range of flexible working options which can be negotiated between an employee and an employer to help workers better balance their work and personal lives. It has the potential to make better use of human resources, while meeting changing work requirements.
12.2 Regular part-time work can be distinguished from casual work by the presence of a "permanent" contract of employment i.e an ongoing contract of unlimited duration. A regular part-time employee is different from a casual employee, who may work the full, or less than the full, ordinary hours of employment, but is not entitled to permanent entitlements, and receives a wage or salary loading in lieu of those entitlements.
12.3 There are certain benefits in part-time employment which are as under:
[a] retention of skilled and valued staff and a reduction in labour turnover, easing labour shortages, and thereby reducing recruitment and training costs;
[b] reduced absenteeism, by relieving stresses which employees face when combining full-time work and other responsibilities such as family commitments;
[c] attracting new staff by adopting "family-friendly" policies;
[d] higher productivity, motivation and commitment from staff; and [e] work flexibility for management to match staff hours with work-flow requirements.
12.4 According to them regular part-time arrangements can allow employees to combine work with family responsibilities, or with study or other interests outside work, as well as allowing people nearing retirement to gradually ease out of the workforce. It also provides employment for those whose health, age or disability would make it difficult to work full-time. It will enable the staff to maintain and improve their skills and develop their careers, making it easier for them to move into full-time work at a later stage; facilitate re-entry into the workforce for those who have had career breaks; and offer employment security and regularity in working times for workers who may otherwise have to rely on casual work.
DISCUSSION
13. Under the Industrial Disputes Act, a 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. There is obviously no reference to the period of work or working hours because, as indicated above, the definition of workman includes several categories including those who are home workers and outdoor workers. Similarly, the definitions in other labour legislations do not make any reference to the number of working hours or whether employment is full time or part time. Likewise "salary" / "wages" are defined under various Acts, wherein also the duration of work period is not specified.
Though the number of normal working hours would depend on the usage or practice in the establishment i.e. offices, factories, banks, etc. at the given time, the number of normal working hours would also depend upon, nature of duties or workman/person i.e. whether full time sweeper/part-time sweeper, full time accountant/part-time accountant, full time/part time computer operator, generally speaking minimum eight hours a day, five days a week is considered to be full time employment. But for part-time employment there is no such minimum, though Sastry Award and Desai award provide that part-time employees should be required to render at least 7 hours services per week, in order to obtain one third of the rate of pay and dearness allowance meant for full time.
14. The main contention of the appellant - employer is that in case of a person who works or is engaged as part-timer, there would be a presumption that he is engaged in some gainful activity, either by way of self-employment or with other employer, during the remaining period. Therefore unless the said person establishes that he is not gainfully employed with another employer or unless the said person is, though working part time, working for substantial part of the entire working time of the employer, a part time worker would not be covered within the term "workman". In this connection it is submitted that under the Minimum Wages Act a person who is engaged for more than 4 hours is entitled for full wages i.e. wages for the full day/whole time. Therefore, the contention is that where a person works for four and half hours at two places i.e with two employers, then he would claim full wage from both the employers as a result of which a part time worker would get the same full wages from an employer which the whole time worker with that employer would be getting. This would create an anomalous position qua the whole time worker. Certain other anomalous situations are also pointed out that a person who meets with an accident may claim compensation from two employers; in case of accident, it would be difficult to determine as to which one of the employers would be responsible for payment of compensation. In view of these contentions, it cannot be said that all the persons who work part-time are "workmen".
The further contention is that part-time worker is not included within the scope of Section 2(s) of the Industrial Disputes Act.
15. On the other hand, the main submission made on behalf of the respondent employee is that employment postulates a relationship between the employer and the employee or master and servant. Once this relationship is established the employee unless falling in any of the excluded categories is a workman, irrespective of duration of the working hours.
16. In Dharangadhra Chemicals Works Ltd. v. State of Saurashtra , it was held that the real test for deciding whether the contract was one of employment was to find out whether the agreement was for the personal labour of the person engaged, and that if that was so, the contract was one of employment, whether the work was time-work or piece-work, or whether the employees did the whole of the work himself or whether he obtained the assistance of other persons also for the work.
17. In Harish Chandra Bajpai v. Triloki Singh , it was held that a contract of employment may be in respect of either piece-work or time-work; but it does not follow from the fact that the contract is for piece-work that it may be a contract of employment. There is in law Sa well-established distinction between a contract for service and a contract of service and it was thus stated in Collins v. Hertfordshire Country Council 1947 KB 598 at p. 615:
In the one case the master can order or require what is to be done while in the other case he can not only order or require what is to be done but how it shall be done.
18. In Birdhichand Sharma v. First Civil Judge , the workmen concerned worked at the factory and were not at liberty to work at their homes. Further they worked within certain hours which were the factory hours, though it appears that they were not bound to work for the entire period and could go away whenever they liked; their attendance was noted in the factory; and they could come and go away at any time they liked, but if any worker came after midday he was not supplied with tobacco and was thus not allowed to work, even though the factory closed at 7 p.m. in accordance with the provisions of the Factories Act. When it was said that they could return at any time, it was subject to the condition that they could not remain later than 7 p.m. There were standing orders in the factory and according to those standing orders a worker who remained absent for eight days (presumably without leave) could be removed. The payment was made on piece-rates according to the amount of work done. The management had the right to reject such biris as did not come up to the proper standard. It was on these facts that the Apex Court had to decide the question whether respondent Nos. 2 to 4 were employed by the appellant. The employer contended that the concerned employees were not workmen under Section 2(1) of the Factories Act and, therefore, Section 79 of the Act providing for leave did not apply to them.
18.1 The Apex Court held that the very fact that the concerned respondents had to work at the factory that in itself implied a certain amount of supervision by the management. Their attendance was noted and they could not get the work done by others but had to do it themselves. Even though they were not bound to work for the entire period during which the factory was open it was not in dispute that if they came after midday, they were not given any work and thus lost wages for that day, the payment being at piece-rates. Further through they could stay away without asking for leave, the management had the right to remove them if they stayed away for a continuous period of eight days. Moreover, there was some amount of supervision in as much as the management had the right of rejection of the bidis prepared if they did not come upto the proper standard.
18.2 The Court further observed that the nature or extent of control varies in different industries and cannot by its very nature be precisely defined. Taking the nature of the work in the above case, it could hardly be said that there must be supervision all the time when bidis were being prepared. The operation being a simple one, the control of the manner in which the work was done was exercised at the end of the day, when bidis were ready, by the method of rejecting those which did not come upto the proper standard. The Apex Court held that in such cases it is the right to supervise and not so much the mode in which it is exercised which is important. The limited freedom which the respondents had of coming and going away whenever they liked or of absenting themselves (presumably without leave) was due to fact that they were piece-rate workers, but the mere fact that the worker was a piece-rate worker would not necessarily take him out of the category of a worker within the meaning of Section 2(1) of the Factories Act.
19. In State of Assam v. Kanak Chandra , the respondent in the appeal was appointed as Mauzadar of a particular village in the year 1939 and prior thereto, his father was Mauzadar of the said village for about 52 years. Mauzadar was a public servant whose prime duty was to collect land revenue and other Government dues with which he was entrusted. He was not concerned with the assessment of tax but only with collection. The question was whether a Mauzadar was a person holding a civil post under the State of Assam within the meaning of Article 311 of the Constitution. The State counsel stressed the fact that the Mauzadar is not a whole time employee. Confirming the decision of the High Court, the Apex Court held that a post outside the regularly constituted services may be a part-time employment and the conditions of service of a Mauzadar enable him to engage in other activities, but that by itself does not mean that Mauzadar was not a civil post under the State. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State. There is a relationship of master and servant between the State and the Mauzadar. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or renumeration. The relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post.
The Apex Court also considered the decision of the Orissa High Court in Venkata Swamy v. Supdt. of Post Offices , wherein the High Court had held that a temporary extra-departmental branch post master was not a person holding a civil post. The Apex Court also observed that the contention that a part-time employee cannot be the holder of a civil post outside the regularly constituted services is too wide and was not supported.
20. The decision of a three Judge Bench of the Apex Court in Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments is a significant decision laying down important tests for determining whether an employer and employee relationship exists between two parties.
The facts were as under:
All the workers are paid on piece-rate basis. The workers generally attend the shops every day if there is work. The rate of wages paid to the workers is not uniform. The rate depends upon the skill of the worker and the nature of the work. When cloth is given for stitching to a worker after it has been cut, the worker is told how he should stitch it. If he does not stitch it according to the instruction, the employer rejects the work and he generally asks the worker to restitch the same. When the work is not done by a worker according to the instructions, generally no further work would be given to him. If a worker does not want to go for work to the shop on a day, he does not make any application for leave, nor is there any obligation on his part to inform the employer that he will not attend for work on that day. If there is no work, the employee is free to leave the shop before the shop closes. Almost all the workers work in the shop. Some workers are allowed to take cloth for stitching to their homes on certain days. But this is done always with the permission of the proprietor of the shop. The machines installed in the shop belong to the proprietor of the shop and the premises and the shop in which the work is carried on also belong to him.
After narrating the above facts, the Apex Court recorded the arguments of the appellant - employer that the test to determine whether employer and employee relationship existed between the parties is to see whether the so called employer has the right to control and supervise the manner of work done by the workers and from the facts found by the High Court it is impossible to come to the conclusion that the appellants had any right to control the manner of work or that they had actually exercised any such control. The Apex Court, therefore, found it necessary to examine the question whether the control test is an exclusive test to determine the nature of relationship. The case law on the subject, both Indian and English came to be reviewed and relying on the Article of Professor Kahn Freund in (1951) 14 Modern Law Review Page-505 the Apex Court observed as under:
24. It is in its application to skilled and particularly professional work that control test in its traditional form has really broken down. It has been said that in interpreting "control" as meaning the power to direct how the servant should do his work, the Court has been applying a concept suited to a past age.
...
It is, therefore, not surprising that in recent years the control test as traditionally formulated has not been treated as an exclusive test.
25. It is exceedingly doubtful today whether the search for a formula in the nature of a single test to tell a contract of service from a contract for service will serve any useful purpose. The most that profitably can be done is to examine all the factors that have been referred to in the cases on the topic. Clearly, not all of these factors would be relevant in all these cases or have the same weight in all cases. It is equally clear that no magic formula can be propounded which factors should in any case be treated as determining ones. The plain fact is that in a large number of cases, the Court can only perform a balancing operation weighting up the factors which point in one direction and balancing them against those pointing in the opposite direction : See P.S. Atiyah, "Vicarious Liability in the Law of Torts'', pp. 37, 38.
26. During the last two decades the emphasis in the field has shifted and no longer rests so strongly upon the question of control. Control is obviously an important factor and in many cases it may still be the decisive factor. But it is wrong to say that in every case it is decisive. It is now no more than a factor, although an important one : See Argent v. Minister of Social Security and Anr. (1968) 1 B.L.R. 1749 at 1759.
27. The fact that generally the workers attend the shop which belongs to the employer and work there, on the machines, also belonging to him, is a relevant factor. When the services are performed generally in the employer's premises, this is some indication that the contract is a contract of service. It is possible that this is another facet of the incidental feature of employment. This is the sort of situation in which a Court may well feel inclined to apply the "organisation" test suggest by Denning, L.J. in Stevenson Jordan and Harrison v. Macdonald and Evans (1952) IT.L.R. 101 C.A. Thereafter, the Court considered the facts of the case for coming to the conclusion that the relationship of employer and employee existed. What is important for the purposes of the present controversy is the following observations in paragraphs 33 and 34 of the judgment.
33. That some of the employees take up the work from other tailoring establishments 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 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 v. Their Workmen 1960 I L.L.J. 722, at p. 726.
34. 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.
21. In The Workmen of the Food Corporation of India v. Food Corporation of India , the Apex Court observed as under:
11. ...The expression "employed" has at least two known connotations but as used in the definition, the context would indicate that it is used in the sense of a relationship brought about by express or implied contract of service in which the employee renders service for which he is engaged by the employer and the latter agrees to pay him in cash or kind as agreed between them or statutorily prescribed. It discloses a relationship of command and obedience. The essential condition of a person being a workman within the terms of the definition is that he should be employed to do the work in that industry and that there should be, in other words, an employment of his by the employer and that there should be a relationship between the employer and him as between employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a "workman" within the definition of the term contained in the Act.
22. Management of Puri Urban Co-op. Bank v. Madhusudan Sahu was a case of appraiser engaged by the bank for quality, purity and value of the gold ornaments being pledged by the borrowers. The gold appraiser succeeded before the Labour Court and the High Court in his contention that he was entitled to the protective umbrella of the ID Act. Allowing the appeal of the bank, the Apex court held that the Industrial Law revolves on the axis of master and servant relationship and the prima facie test of relationship of mater and servant is the existence of the right in the master to supervise and control the work done by the servant (the measure of supervision and control apart) not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work.
The Court also referred to the fact that the bank had on its approved list, other such like appraisers and it was not obligatory for the bank to allot work to the respondent or any other, at all. Additionally, in no could can he ask for work, or periodic remuneration or idling wages. These particulars, not by themselves, but in the totality of circumstances indicated lack of master and servant relationship.
The Apex Court held that the respondent could be directed by the bank to appraise the quality, purity and value of the gold ornaments being brought in the bank for pledging, but not the manner in which he shall do it. That was left to him exclusively as it depended on his skill, technique and experience. As per the terms of engagement, he also executed a bond indemnifying and holding himself responsible to the bank for all his acts and commissions as an appraiser, and be accountable for the loss sustained by the bank on account of undervaluation of the gold pledged with it. These terms inhered in the bank the power to warn him and to remind him that he was not expected to be negligent in his duty. Still there was a fair element of freedom though coupled with responsibility for the respondent in the manner in which he could do his work. The Apex Court accordingly held that the respondent was not an employee or a workman as defined under the the ID Act. There was no contract of service, but there was a contract for service.
23. In HR Adyanthaya v. Sandoz (India) Ltd. , the challenge before the Court was to the classification made between two categories of sale promotion employees, viz. those drawing wages upto a particular limit and those drawing wages above it. The Apex Court held that when a legislation extends protective umbrella to the employees of a particular class, it cannot be faulted so long as the classification made is intelligible and has a rational nexus with the object sought to be achieved. The object of the legislation appears to be to give protection of service conditions to the weaker section of the employees belonging to the said category. The legislature at that particular time thought that it was not either necessary to extend the said protection to all the employees belonging to the said category irrespective of their income or at that stage the circumstances including the conditions and the nature of the employment and the sales business or operation did not warrant protection to the economically stronger section of the said employees, and that economically weaker among them alone needed the protection. Hence it cannot be said that the classification made of the said employees on the basis of their income had no rational nexus with the object sought to be achieved viz. the protection of the weaker section of the sales employees. The protective umbrella need not cover all the workmen doing the particular type of work. It can extend to them in stages. At what stage which of the said section of the employees should come under the said umbrella is a matter which should be left to the legislature which is the best judge of the matter. The legislature cannot be mandated to prescribe and secure particular service conditions to the employees or to a particular set of employees.
24. In Indian Petrochemical Corporation Ltd. v. Shramik Sena , the Apex Court held that even if an employee is a workman under the Factories Act, his service conditions regarding continuity of service, seniority, pension and other benefits would be governed by the other statutes, Rules, contracts or policies and, therefore, though the employees of a statutory canteen are workmen within the meaning of the Factories Act, they do not become employees of the establishment for all purposes.
25. In Railway Board v. JV Subhaiah , the Court was concerned with the employee of a canteen for railway employees. The canteen was run and managed by the co-operative society of the Railway employees. The staff employed in the co-operative stores/canteen was subject to the dual control by the society and also by the Registrar of Co-operative Societies and the Railway administration had no role to play. The Court held that mere grant of subsidy cannot be a determinative factor.
26. In Ram Singh and Ors. v. Union Territory , it is held as under:
15. In determining the relationship of employer and employee, no doubt, "control" is one of the important tests but is not to be taken as the sole test. In determining the relationship of employer and employee, all other relevant facts and circumstances are required to be considered including the terms and conditions of the contract. It is necessary to take a multiple pragmatic approach weighing up all the factors for and against an employment instead of going by the sole "test of control". An integrated approach is needed. "integration" test is one of the relevant tests. It is applied by examining whether the person was fully integrated into the employer's concern or remained apart from and independent of it. The other factors which may be relevant are - who has the power to select and dismiss, to pay remuneration, deduct insurance contributions, organise the work, supply tools and materials and what are the "mutual obligations" between them. (See Industrial Law, 3rd Edn., by I.T. Smith and J.C. Wood, at pp.8 to 10).
27. In WH D'Cruz v. ME Thomas (1996) 1 LLJ 706 (Kerala), the Court was concerned with a part-time accountant who was preparing the accounts and doing connected work from 10.00 a.m to 1.00 p.m. As against the establishment timings from 9.00 a.m. to 4.30 p.m., after 1 o'clock, the respondent was attending the work place of a firm of which he was a partner. The establishment required the services of one full time accountant and there was no work for both full time accountant and part-time accountant. Therefore, the services of the respondent were terminated. Thereafter, the respondent started working full time in the firm of which he was a partner. The Court held that the appointment was part-time and that the respondent was looking after his own partnership business during the rest of the day. The Court, therefore, did not consider the respondent as a workman within the meaning of the ID Act.
28. In AK Selvaraj v. P.O. Labour Court 1998 (4) LLN (Madras) (para 9), the Court held that the intention of the ID Act is that wherever there is illegal retrenchment or removal of employees or temporary employees, they should be reinstated or paid compensation because they will be losing their livelihood and it will take some time for them to get themselves employed. When a person is employed permanently under some other employer and is temporarily employed under another the respondent, he cannot be construed as a temporary employee, entitled to compensation or a person entitled to raise industrial dispute. On this reasoning, the Madras High Court dismissed the petition of the employee.
29. In RB Employees' Association v. Reserve bank AIR 1966 SC 355 (paras 22 & 25), the cut off limit for applicability of the ID Act to the employees doing supervisory work was Rs. 500/-. At the time of reference, the concerned employees were drawing less than Rs. 500/- per month. However, during pendency of the reference, their wages increased and the National Industrial Tribunal held that the jurisdiction of the National Tribunal was ousted in case the salary of the concerned employee exceeded Rs. 500/-. The Apex Court reversed the decision of the National Tribunal and held that supervisory staff drawing Rs. 500/- cannot be debarred from claiming that they should draw more than Rs. 500 presently or at some future stage. They can only be deprived of the benefits if they are not workmen at the time they seek the protection of the Industrial Disputes Act. The Court held that in all such cases ultimately on merits the Court will have to consider various factors such as the nature of the industry, the type of work in which he is engaged, the organizational set up of the particular unit of industry and similar other factors.
30. In Mahesh Transport Co. v. The Transport & Dock Workers' Union , the Apex Court referred to the decision of a Single Judge of the Andhra Pradesh High Court in G. Rangamannar Chetty v. Industrial Tribunal taking the view that a part-time employee is not covered by the Industrial Disputes Act. Though the Apex Court left the question open, the following observations in the judgment of the Apex Court would give an impression that the Apex Court did not quite approve of that view of the High Court:
Mr. Hardy invited our attention to the judgment of a Single Judge of the Andhra Pradesh High Court in G. Rangamannar Chetty v. Industrial Tribunal where the learned Judge seems to have been of the view that a part time employee is not covered by the Industrial Disputes Act. For that proposition he referred to the fact that several decisions of Industrial Tribunals had taken that view. The decisions of the Industrial Tribunals, however, have not been specifically referred to or discussed in the judgment, nor has the learned Judge discussed the matter independently. We do not wish to say, in the absence of a detailed argument on the point, as to whether the workers appointed part-time by an employer may never get the benefits of the Industrial Disputes Act. So far as we are concerned in the present case, there is no question of part-time employment.
31. In Essen Deinki v. Rajiv Kumar , the Apex Court made the following pertinent observations in para 14:
14. Whilst it is true that the law seems to be rather well settled as regards the "bread-and-butter" statutes and the welfare legislation introduced in the statute-book for the purposes of eradication of social malady, it is a duty incumbent on the law courts to offer a much broader interpretation since the legislation is otherwise designed to prevent perpetration of any arbitrary action and no contra-view thus is plausible. American Express affirms such a view.
32. In Gurdarshan Singh Grewal v. The State of Punjab 1983(1) All India Services Law Journal 399, the Punjab & Haryana High Court held that the word "part-time" has nothing to do with the nature of appointment and it only regulates the duration of working hours for which an appointee is required to work. The word "part-time" as per Chambers 20th Century Dictionary only means "for part of working time only". There is no rule, principle or precedent on the basis of which he can plausibly argue that a part-time employee has to be treated as a temporary employee or at least one other than a permanent employee. Nor can the learned Counsel plausibly argue that a part-time employee cannot be said to be a holder of a civil post. Reliance was placed in this behalf of the decision in State of Assam and Ors. v. Kanak Chandra Dutt 1967 SC 884.
33. In Coal India Ltd. v. P.O. (Labour Court-3) 2001 II LLJ 45 (para 7), the Delhi High Court held as under:
7. The Labour Court has also relied upon the judgments reported as State and Ors. v. K.C. Dutta; K. Ramachandra v. State of Kerala; Gurudarshan Singh v. State of Punjab 1983(1) SLJ 399; Kanubhai Maru v. N.K. Desai 1988-I LLN 1004, and Yashwant Singh Yadav v. State of Rajasthan and Ors. 1987 LLR 96, to come to a conclusion that the definition of the workman is comprehensive and wide enough to include a part-time employee. The Labour Court further found that the part-time employee is covered by the definition as per Section 2(s) of the Industrial Disputes Act. I am satisfied that the aforesaid the aforesaid finding of the Labour Court regarding the availability of the protection of Section 2(s) and other cognate sections is legally sustainable and does not call for any interference. In particular, I am in respectful agreement with the law laid down in Kanubhai Maru v. N.K. Desai (supra), by the Gujarat High Court where a part-time servant doing the work of a sweeper was held to be a workman and the law laid down in Yashwant Singh v. State of Rajathan and Ors. (supra), by Rajasthan High Court which held that Section 2(s) of the Industrial Disputes Act covers a part-time employee also It was admitted that the workman was employed since February 21, 1983 and worked till October 31, 1984 and there was no gap or absence in his duty and he had been continuously employed during the said period. The Labour Court held that having thus worked for more than a year, his services could not be terminated without complying with the mandatory provisions of Section 25F of the Industrial Disputes Act.
34. We may now turn to the decision of a Division Bench of this Court in Aruna Mills Ltd. v. Dr. Chandraprasad C. Trivedi (1976) 17 GLR 291 because it is the observations made in the said decision from which the Division Bench differed while making the present reference. Hence, we would refer to the facts of that case in some detail.
34.1 The respondent-claimant was in the private employment of the petitioner Mill ("the Mills") and was drawing the basic pay of Rs. 175/- per month and a fixed amount of Rs. 40/- as Dearness Allowance. The respondent was engaged as a physician in-charge of the dispensary of the Mill and was expected to work at least for an hour in a day. The respondent was also running a private dispensary of his own where he attended daily from 10:00 a.m. to 12:30 p.m. and thereafter, from 06:00 p.m. to 08:30 p.m. The respondent was also working as a part time Doctor in two other Mills (Sarangpur Cotton Mills No. 1 and 2), where he attended Mill No. 1 on Mondays, Wednesdays and Fridays and Mill No. 2 on the rest of the days excepting Sundays. From Mill No. 1, he was getting salary of Rs. 250/- plus dearness allowance while from Mill No. 2 he was getting Rs. 150/- without dearness allowance. He was also getting bonus from both the Mills. The respondent claimed from the petitioner Mill (Aruna Mills) dearness allowance and bonus.
34.2 The Mills resisted the claim before the Labour Court on the ground that the respondent being a Doctor was not covered by the definition of workman in Section 2(s) of the Industrial Disputes Act. The Mill also stated that it was engaged in the activity of manufacturing textiles and that the medical work being done by the respondent had nothing to do with textiles. The Labour Court as well as Division Bench rejected these contentions and held that the respondent was doing skilled technical work for hire or reward and was, therefore, a workman. As regards the employer's contention that the respondent was engaged on part time basis and was, therefore, not entitled to the benefits, the Division Bench held that the matter was covered by the industrial award which provided for dearness allowance to "all employees". "Obviously, the award does not make any differentiation between a full time employee and a part time employee. If the award intended not to give dearness allowance to the employees who were part time employees, it would have said so specifically. But the fact that no such exception is made in case of a part time employee and that instead of making any such exception, the award uses the comprehensive expression "all employees" clearly suggests that the award wanted to cover employees, who are working full time as well as those who are working part time. In these circumstances, the contention of the Mills that the award for allowing dearness allowance does not apply to part time employees, cannot be sustained."
34.3 After giving the aforesaid finding in favour of the respondent, the Division Bench confirmed the decision of the Labour Court that a part time employee was entitled to get dearness allowance under the above referred award, but the actual amount of dearness allowance which could be awarded to such part time employees would not be at the same flat rate extent to which it was given to full time employees and that dearness allowance would have to be awarded only proportionately to a part time employee i.e. in proportion to the time for which he was rendering his services to the Mill.
35. We may also now refer to the decision of a learned Single Judge of this Court in Govindbhai Kanabhai Maru v. N.K. Desai 1988 Labour and Industrial Cases 505, where the learned Single Judge followed the decision of another Division Bench of this Court in Special Civil Application No. 3063 of 1986 decided on 18.06.1986 and held that the definition of "workman" in the Industrial Disputes Act is couched in sufficiently wide terms so as to include even part time employees who have been in service over a long period.
36. On an analytical review of the statutory provisions and the aforesaid decisions of the Apex Court, this Court and other High Courts, the principle which emerges is that part time employees are not excluded from the definition of workman in Section 2(s) of the Industrial Disputes Act merely on the ground that they are part time employees. The argument urged on behalf of the employers based on the definition of "working journalist" in the Working Journalists and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955 cannot be accepted. Looking to the nature of the newspaper industry, the definition is consciously given in very wide terms. In the newspaper industry, there are a large number of persons who are working on part time basis as reporters, news photographers, cartoonists etc. and also for more than one newspaper establishment. Hence, the ex abundante cautela use of the words, "either whole time or part time" by the Legislature in the definition of "working journalist" in the said Act of 1955 does not mean that the definition of "workman" in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression "part time" has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which an appointee is required to work. If a person fulfills the test of a workman, he cannot be excluded from the definition only on the ground that he is a part time employee and not a full time employee. However, the Court will have to apply various tests applicable for determining the relationship of employer and employee such as the control test, the integration or the organisation test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employer's concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organise the work, etc. CONCLUSIONS
37. To sum up, our conclusions are as under:
1. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of "workman" under Section 2(s) of the Industrial Disputes Act, and does not fall in any excluded category, he will be covered by the definition of "workman" under the ID Act, and he will be entitled to all the benefits under the said Act.
2. A perusal of Section 2(s) of the ID Act indicates that it does not specifically refer to "a part-time workman" nor does it specifically exclude "a part time workman" from the definition of "workman". Since the number of hours is not determining criterion for deciding whether a person falls within the definition of "workman" or not, it cannot be said that a part-time worker is not a "workman" within the meaning of the provisions of the ID Act.
3. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered -
3.1 The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering services on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis.
3.2 Since persons may be engaged for part-time work for various reasons, while deciding the question - whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of "workman" under Section 2(s) of the ID Act.
3.3 Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the ID Act but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied.
3.4 We do find some substance in the submission made on behalf of the employers that if a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation as illustrated on behalf of the employers and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.
38. The question whether a person who has made a claim before the Labour Court is a "workman" will be a mixed question of law and fact. Whether a person rendering services on a part-time basis can be said to be a "workman" within the meaning of the Industrial Disputes Act, 1947 would similarly be a mixed question of law and fact. Hence the appeal is remitted back to the Division Bench for deciding the question whether the respondent herein was a workmen within the meaning of the Industrial Disputes Act, 1947.
39. We answer the Reference accordingly.