COMMISSIONER OF INDUSTRIES Vs. KAMLABEN BIJALBHAI PARMAR

JUDGEMENT

(1.) THE appellant has sought to challenge oral order dated 6.7.2011 of learned Single Judge of this Court in Special Civil Application No.3733 of 2011 whereby the appellant's petition is summarily dismissed on the short ground that the appellant could not point out the contentions which were raised by him in the written statement filed before the labour Court and which were not dealt with by learned Judge of the labour Court while deciding Reference (LCA) No.790 of 2004. That original reference was in respect of industrial dispute raised by the opponent pursuant to termination of her service in violation of mandatory provisions of the Industrial Disputes Act, 1947. THE undisputed facts established before the Labour Court were that the respondent had worked as a part-time employee for cleaning and sanitation in the office of appellant for 18 years. THE service of the respondent was calculated from orders issued to her from time to time for increasing her wages. As against her demand for regularization of services in terms of the policy and circular of the Government, her service was terminated without following any procedure and without complying with any provision of law. Under the circumstances and having regard to the peculiar facts of the case, the Labour Court ordered her reinstatement with 25% back wages by award dated 30th November 2010.

(2.) LEARNED Assistant Government Pleader, Mr.Niraj Soni, vehemently argued that the facts of continuity of service and completion of 240 days of service in the year preceding the date of termination were not duly proved by the respondent and an order to reinstate the respondent with back wages ought not to have been made against the appellant in view of the policy of the Government to discontinue such staff. LEARNED counsel, Mr.Pathak, appearing for respondent relied upon recent decision of Hon'ble Supreme Court in Devinder Singh v. Municipal Council, Sanaur (JT 2011 (5) SC 333) wherein it has been categorically held that definition of workman does not make any distinction between full- time and part-time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) of the Industrial Disputes Act, 1947 from which it could be inferred that only a person employed on regular basis or a person employed for whole-time job is a workman and the one employed on temporary, part-time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman. It is further held, by referring judgment of the Apex Court in Anoop Sharma vs. Executive Engineer, Public Health Division No.1 Panipat (Haryana) (JT 2010 (4) SC 229; 2010(5) SCC 497) that termination of service of a workman without complying with mandatory provisions contained in Section 25F (a) and (b) should ordinarily result in his retrenchment. The Apex Court went on to observe that though the employee therein was not engaged after an advertisement and consideration of competing claims of other eligible persons, it was surprising that Division Bench of the High Court decided the petition by assuming that the appointment was contrary to the recruitment rules and Articles 14 and 16 of the Constitution. The Apex Court, in the end, directed that, if the employer reinstated the employee within a period of four weeks, the employee shall also be entitled to wages for the period between the date of the award and the date of actual reinstatement.