NARENDRA DEV Vs. LABOUR COURT

JUDGEMENT

(1.) THE petitioner was appointed as Instructor in G.D. Somani, Poly technique, Molasar (District Nagaur) as a Motor Mechanic in the pay -scale of Rs. 355 -570 on three months probation as per order dated 05.11.79 by the second respondent. On completion of probation period the petitioner was confirmed on that post. It is the case of the petitioner that on 15.08.82 he applied for leave to go to Jodhpur for some urgent personal work, where he suddenly fell ill and he sent application from time to time for extension of leave. Later on, on 25.09.82 on recovery he joined duties and submitted the certificate of the Doctor for his illness. Thereafter, the petitioner worked from 25.09.82 to 28.09.82 and took half -day's leave on 28.09.82 and two day's further leave and went to Jodhpur where he again fell ill and applied for extension of leave alongwith medical -certificates. In spite of this the petitioner was served with a notice dated 13.10.82 and thereafter his service were terminated by order dated 25.11.82. The petitioner's termination tentamounts to retrenchment as provisions of Section 25F of the Industrial Disputes Act, 1947 were not complied with and thus his termination is per se illegal.

(2.) AS the petitioner was retrenched he raised the industrial dispute and on submission of failure report a refrence was made by the State Government to the Labour Court, Bikaner for adjudication of the dispute as per Section 10 of the Act. It was averred by the employer that the institution is not an industry nor the petitioner was a workman within the meaning of Section 2(s) of the Act and, therefore, reference under the Industrial Dispute Act is not maintainable. During the proceedings it was found by the Labour Court that the termination tentamounts to punishment for misconduct and on the request made by the employer the second respondent was permitted to lead evidence to prove the misconduct before the Labour Court itself. The evidence was led by filing affidavits. The petitioner's case was dismissed by the Labour Court holding that the petitioner is not a workman as per Section 2(s) of the Industrial Dispute Act and, therefore, reference is not maintainable. The objection of the employer that the petitioner was not a workman in an industry was however overruled. The Court below has also bound misconduct proved against the petitioner.

(3.) SECTION 2(s) of the Act defines 'Workman' whereunder workman means any person including an apprentice employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied. Thus in order to be workman the person should satisfy the following requirements: