C.W.P.No. 1297 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P.No. 1297 of 1989 Date of Decision:- 12.11.2010 Ravinder Kumar Petitioner VERSUS The Presiding Officer, Labour Court, Jalandhar and another. Respondents. CORAM :HON'BLE Ms. JUSTICE RITU BAHRI. Present: Mr.Ashwani Bakshi, Advocate, for the petitioner. None for the respondents. 1. To be referred to the Reporters or not ? 2. Whether the judgment should be reported in the Digest ? RITU BAHRI,J The petitioner has challenged the award of the Labour Court under Articles 226/227 of the Constitution of India dated 26.10.1987 (Annexure P-6). The petitioner was working with respondent No.2 Management since 1984 as a Helper. On 1.2.1985 the petitioner was given a regular appointment letter vide Annexure P-2. However, his services were terminated on 6.7.1985 without any show cause notice, charge sheet or inquiry. The C.W.P.No. 1297 of 1989 2 petitioner raised a demand before the Labour Court. In the labour Court, the stand of the Management was that the services of the workman were terminated on 1.2.1985 in term of the contract of the employment. Clause 3 of the agreement of employment reads as under:- “ Your services can be terminated at any time during the period of probation or extended period of probation without any notice or assigning any reason.” The labour Court has declined the reference on the ground that the services of the workman were terminated in terms of stipulation made in the agreement or employment. The workman was employed in terms of appointment letter on 01.02.1985 and that on 6.7.1985 his services were terminated. Thus, he had not completed 240 days of continuous service.The plea of the workman that the period when he joined the factory of the management as a trainee for six months, should be counted towards service as workman. Mr. Ashwani Bakshi, Advocate for the petitioner has challenged the award on the ground that as per definition of the workman in The Industrial Disputes Act, 1947, an apprentice means a workman. C.W.P.No. 1297 of 1989 3 The definition of workman is as under:- “S.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 an an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; C.W.P.No. 1297 of 1989 4 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.” In Dharangadhra Chemical Works Ltd. Appellant Vs. State of Saurashtra and others, Responents, AIR 1957 S.C. 264 the definition under Section 2(s) of the Industrial Disputes Act has been discussed. The Apex Court has observed in paragraph 14 which -is as under:- “ The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant 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, or to borrow the C.W.P.No. 1297 of 1989 5 words of Lord Uthwatt at page 23 in Mersey Docks and Harbour Board Vs. Coggins & Griffith (Liverpool) Ltd. 1947-1 AC 1, at p. 23 (E), “The proper test is whether or not the hirer had authority to control the manner of execution of the act in question.” The petitioner was appointed as a trainee for six months with the respondent. He was paid stipend of Rs.250/- per month. He was to do the training work in the respondent factory, which amounts to skilled labour. From the cross examination of Deputy Manager, Administration, Mr. B.B.Bhalla, it is clear that the wages was paid to him. The wage slip was shown to him which pertained to the year 1984. From the evidence on record, it is clear that the petitioner was a trainee under respondent No.2 on payment of stipend and there existed relationship of master and servant i.e. employor and employee. In view of the fact on record, the interpretation given by the Labour Court that the petitioner was a trainee and he could not be treated as a workman under the Industrial Disputes Act is not legally correct. C.W.P.No. 1297 of 1989 6 In view of Section 2(S) of the Act, the award is quashed. The services of petitioner could not have been terminated without complying with the provisions of Section 25F of the Act which is reproduced as under:- “Condition precedent to retrenchment of workmen- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and (c ) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the C.W.P.No. 1297 of 1989 7 appropriate Government by notification in the Official Gazette].” Admittedly, no retrenchment compensation has been paid in compliance of Section 25Fof the Act. The petitioner has completed 240 days with respondent No.2, therefore, the award is liable to be quashed for non- compliance of Section 25F of the Act. The award of the Labour Court is of 1987 and there is a gap of 23 years. Ends of justice would meet, by awarding compensation of Rs.30,000/- to the petitioner. The benefit of reinstatement after a gap of 23 years would not be appropriate relief. No order as to costs. Accordingly, The writ petition is disposed of. 12.11.2010 (RITU BAHRI) Anoop JUDGE