THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No.1024 of 2002 ORDER: Respondent No.2 filed I.D.No.57 of 1998 before the Labour Court-I, Hyderabad complaining that the petitioners herein have terminated her services in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short ‘the Act’). She pleaded that in the year 1994, she was engaged as Part-Time Typist and she was appointed as Junior Executive on regular basis on 15.04.1996. Respondent No.2 was put under probation for a period of one year from the date of such appointment. The petitioners issued proceedings, dated 24.01.1997, terminating the services of respondent No.2. In the I.D., it was pleaded that respondent No.2 is deemed to be in service of the petitioners from 1994 onwards and that she has completed 240 days of service. According to her, she is a ‘workman’ as defined under Section 2(s) of the Act and that the termination through order, dated 24.01.1997, is retrenchment as defined under Section 2 (oo) of the Act. Further, the case of respondent No.2 was that she applied for maternity leave from 11.12.1996 to first week of February 1997 and much before expiry of leave period, the petitioners have terminated her services. The principal ground urged by her was that the termination amounts to retrenchment and it was contrary to Section 25-F of the Act. The petitioners opposed the I.D. by raising several grounds. According to them, respondent No.2 does not answer the description of ‘workman’ inasmuch as she was discharging administrative functions. It was also pleaded that respondent No.2 was appointed as a Clerk on 15.04.1996 and the termination took place before the expiry of one year and thereby, it does not amount to retrenchment. Another ground pleaded by them was that the termination was strictly in terms of the order of appointment. Through award, dated 29.08.2001, the Labour Court directed reinstatement of respondent No.2 with continuity of service, full back wages and attendant benefits. The award was published by the Government on 29.11.2001. The petitioners challenge the award passed by the Labour Court. Sri Deepak Bhattacharjee, learned counsel for the petitioners, submits that respondent No.2 was engaged on Part- Time basis intermittently before she was appointed on 15.04.1996 and that such working cannot be treated as regular service nor it can be counted towards period of working. He further submits that a specific clause was incorporated in the order of appointment that the petitioners have the right to terminate the probation or to extend it depending upon their satisfaction as to the functioning of respondent No.2. He also submits that respondent No.2 is not a ‘workman’ as defined under Section 2 (s) of the Act. The learned counsel further submits that Section 25-F of the Act does not get attracted, since the termination has taken place before expiry of one year from the date of appointment. Sri S.Ashok Anand Kumar, learned counsel for respondent No.2, on the other hand, submits that his client entered the service of the petitioners in the year 1994 and what has taken place on 15.04.1996 is a regular appointment almost by way of promotion. He further submits that the duties assigned to respondent No.2 were not at all administrative in nature and thereby, she answers the description of ‘workman’. The learned counsel also submits that the termination has taken place at a time when respondent No.2 was on leave and such termination apart from being contrary to Section 25-F of the Act, is opposed to the provisions of the other enactments such as Employees’ State Insurance Act 1948 and the Maternity Benefit Act, 1961. Respondent No.2 claimed that she joined the service of the petitioners as Typist in the year 1994. However, even according to her, she was appointed as Part-Time Typist. The plea of the petitioners that such engagement was not continuous nor respondent No.2 was provided any regular work remains unrebutted. The appointment of respondent No.2 as Junior Executive was only on 15.04.1996. Four clauses incorporated in the order of appointment, read as under: (1) Your appointment in the position mentioned above will take effect from the date of your joining. This letter of appointment will stand automatically cancelled in case you do not join duty on or before 30th April, 1996. (2) Your appointment as above will be on probation for a period up to 31st March, 1997 from the date of your reporting for duty. The probation period may be extended by a further period of not more than 6 months. During your probation, your services may be terminated without assigning any reason and without any notice. You confirmation in the services of the company will depend on your satisfactory performance during of probation period. (3) Your appointment as above on probation will be on a monthly basic salary of Rs.1,390/- in the grade of Rs.1390-80-1710-100-1910-110- 2020-120-3460 plus such other allowances as may be admissible under the rules in force in the company from time to time. (4) You will be initially posted at our service Centre at Hyderabad. During the tenure of your service, you shall be liable to be transferred to any place in Indian or from one department to another department of the company, as may be deemed necessary. The order of termination was issued before expiry of one year i.e. on 24.01.1997. It reads as under: “In view of the unsatisfactory performance during the probationary period we regret that your services are terminated with immediate effect. The salary due to you for the month of December, if any, after adjustment of recovery of pay for the days not attended to office will be settled in due course.” Respondent No.2 approached the Labour Court by pleading that termination amounts to retrenchment in violation of Section 25-F of the Act. In this context, certain provisions of the Act become relevant. They pertain to definition of retrenchment, definition of ‘workman’ and Section 25-F as such. The provisions read as under: Section 2 (oo) ‘retrenchment’ means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include- (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of the employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulated in that behalf contained therein; or © termination of the service of a workman on the ground of continued ill-health. Section 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 prison; 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.” Section 25-F.Conditions 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 workmen has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workmen 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 appropriate Government by notification in the Official Gazette. The Labour Court passed an award directing reinstatement with full back wages and attendant benefits. In view of the submissions made by the learned counsel for the parties, it needs to be seen as to whether respondent No.2 answers the description of ‘workman’. The definition has already been extracted. It has been subjected to interpretation in quite large number of cases. The effort was more upon the exceptions than what the body of the Section means. In case an employee who otherwise falls within the definition of ‘workman’ is entrusted with managerial or administrative functions, he stands excluded from the definition. Respondent No.2 had reproduced the nature of duties assigned to her in the I.D. itself. The functions assigned to her are as follows: (1) Loan documentation; (2) Issuing disbursement cheques and making corresponding entries in the ledgers such as EMI, Pre-EMI (Disbursements): (3) Receiving cash and cheques from customers and making entries in the respective ledgers; (4) Attending telephone calls and enquiries; (5) Preparation of notices, statements such as processing fees, control ledger, administrative fees control ledger, application fee account; (6) Making entries in the EMI and Pre-EMI accounts of individual customers; (7) Updation of Security Register (Dealers with original documents, title deeds deposited with the company by the client; and (8) Preparation of offer letter and sending intimation letters to the dishonoured cheques”. A bare perusal of these functions discloses that they are more in the form of administrative functions than those, which are to be discharged by the unskilled labour. A person who discharges administrative functions need not be at the helm of the affairs of the organization. The expression administrative capacity can be understood in contradistinction to the functions, which a workman is required to discharge at the ground level and on the instructions of superiors. Viewed in this context, it becomes highly doubtful whether respondent No.2 can be treated as workman. Assuming that she answers the description of ‘workman’, it needs to be seen as to whether the termination through order, dated 24.01.1997, amounts to retrenchment. The definition of retrenchment has already been extracted. Every termination does not amount to retrenchment. The definition under Section 2(oo) discloses that certain categories of service are excluded from the definition of retrenchment. One such occurs, where it is ordered strictly in terms of the order of appointment or contract. In the instant case, the order of termination was passed strictly in terms of Clause 3 of the order of appointment. Therefore, the termination cannot be treated as retrenchment. Section 25-F of the Act would get attracted only when the retrenchment as such occurs within one year from the date of appointment. It has already been stated that respondent No.2 was appointed as Junior Executive on 15.04.1996. The termination took place on 24.01.1997 i.e. before expiry of one year. The plea of respondent No.2 that the service rendered by her as Part-Time Typist must be taken into account, is difficult to be accepted. The engagement of an individual as Part-Time Typist that too on intermittent occasions cannot be counted as service for reckoning the length of service in the context of Section 25-F of the Act. Therefore, the writ petition is allowed and the award passed by the Labour Court is set aside. The learned counsel for respondent No.2 submits that though an interim order was passed by this Court subject to compliance with Section 17 of the Act, the petitioners did not comply with the same. If that be so, it shall be open to her to work out her remedies in accordance with law. It is also made clear that setting aside the award passed by the Labour Court shall not preclude respondent No.2 from working out her remedies in accordance with law. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY,J Dt: 22.12.2010. Note: L.R. copy to be marked. (B/o) kdl