SBCWP No.1691/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.1691/2002. District Education Officer Kota Vs. Smt.Heera Bai & Anr. Date of order : November 5, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Hemant Gupta, Additional Government Counsel. Shri Deepak Goyal for respondent No.1-workman. **** BY THE COURT :- Heard learned counsel for the parties. 2) This writ petition is directed against the award of the learned labour court Kota by which reference made to it by the appropriate goverment on the question of validity of retrenchment of respondent No.1 was answered in the terms that her retrencment was not valid and that she would be entitled to reinstatement in service with continuity in service with 50% back wages. 3) Shri Hemant Gupta, learned Additional Government Counsel argued that respondentw-workman was never employed by the petitioner and that she was merely engaged in the work of cleaning as a part time worker on consolidated payment of Rs.150/- per month which was sort of job work. She in cross-examination before the labour court admitted that no appointment SBCWP No.1691/02. 2 order was ever issued to her. There was no vacant sanctioned post so as continue her. In fact, she was not engaged against any such vacant sanctioned post. The District Education Officer was never her appointing authority nor the Principal of the Government Primary School Sakatpura obtained approval for her appointment. Learned Judge, labour court ought not to have directed the district education officer to reinstate her in service. Even otherwise, respondent-workman did not complete 240 days of service in a calendar year immediately preceding the date of her retrenchment by the petitioner. She worked only for few days in between and that too in broken spells. Learned counsel also argued that part time employee like the respondent No.1 could not be treated as a workman in the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short, "the Act"). 4) Shri Deepak Goyal, learned counsel for respondent-workman has opposed the writ petition and submitted that the learned Labour Court has passed the award on examination of the evidence and has rightly arrived at a finding that the respondent- workman had worked for 240 days in the calendar year immediately preceding the date of her retrenchment. Learned counsel relying on division bench judgment of this Court in Yashwant Singh Yadav Vs. State of Rajasthan & Anr. : 1989 (59) F.L.R. 607 argued that this Court in the aforesaid case has held that even the part time employees are workmen for the purpose SBCWP No.1691/02. 3 of Section 2(s) of the Act. The evidence clearly proved the fact that respondent-workman continuously worked with the petitioner from 11/8/1992 till 19/11/1994. There was no compliance of Section 25F of the Act before retrenchment of her services. The Labour Court was therefore justified in directing reinstatement of the respondent-workman with continuity of 50% backwages. 5) Shri Hemant Gupta, learned Additional Govenrment Counsel rejoined and submitted that this court may alternatively consider the question whether the direction for reinstatement of the respondent- workman in the facts of the case would be justified particularly when she was only part time worker and never engaged against the sanctioned post. She was merely requried to work on a consolidated salary of Rs.150/- per month for the work of cleaning etc. The retrenchment was made on 19/11/1994 whereas the reference was made by the notification of the government dated 7/8/1999 and the award was passed on 17/9/2001. So far, the respondent-workman has not been reinstated and at this stage, 14 years after the date of her retrenchment, there would be no justification for her reinstatement. This Court therefore may consider directing payment of lumpsum compensation to her in lieu of reinstatement. Learned counsel in this connection relied on the judgment of this Court in Vikas Adhikari & Anr. Vs. Judge, Labour Court, Bikaner & Anr. : 2007(1) WLC Raj. 474 and number of Supreme Court judgments referred to SBCWP No.1691/02. 4 therein. 6) I have given my anxious consideration to the arguments aforesaid and perused the impugned award and also considered the material forming part of the record. 7) Contention that the part time worker cannot be considered as a workman, cannot be upheld in view of the authoritative pronouncement by the Division Bench of this Court in Yashwant Singh Yadav supra in which, Division Bench held that definition of workman as given in Section 2(s) of the Act is comprehensive and wide enough to include even a part time employee and such employee cannot be excluded from the purview of Act or for that matter, the provisions contained therein would still be applicable to such employee. As far as merit of the case is concerned, examination of the award indeed reveals that the workman could produce before the labour court the proof with regard to payment of salary to her in the sum of Rs.150/- per month not only for the months of August, September and October, 1992 but also beyond thereafter for the months of November & December 1992 and January 1993 and, thereafter, from May-June, 1993 and January, February and March 1994. Whatever documents and material were available with the workman, were produced by her before the labour court. Such evidence was supported by her own statement. She was subjected to cross-examination and has remained unshakened as far as material aspect with regard to her working with the petitioner for SBCWP No.1691/02. 5 the aforesaid period is concerned. Evidence has thus proved that the respondent-workman worked with the Government Primary School Sakatpura regularly during the aforesaid period. The evidence has also proved that petitioner did not comply with the provisions of Section 25F of the Act at the time of her retrenchment. Question however arises whether in the facts of the case when now 14 years have gone by from the date of retrenchment of the respondent and admittedly when she was not working as full time worker against any regular sanctioned post, direction for her reinstatement would be justified. 8) In view of the law discussed in detail by this court in Vikas Adhikari supra and number of Supreme Court judgments referred to therein which have all been relied upon by the learned Additional Government Counsel and keeping in view the facts of the present case, at this stage, I am of the view that so far as direction of the labour court for reinstatement with continuity in service with 50% back wages may not be justified particularly when she worked with the petitioner only for a period of 2 years & 3 months but at the same time, it cannot be ignored that retrenchment of the respondent was made as far back as on 19/11/1994. Taking into consideration this period of 14 years and totality of the circumstances, in my considered view, ends of justice will be met if direction of reinstatement is suitably modified and instead, petitioner is directed to pay to the respondent-workman lumpsum compensation SBCWP No.1691/02. 6 in lieu thereof. 9) In the result, award on that aspect is modified and direction of reinstatement with continuity and 50% backwages is consequently modified and the petitioner shall be required to pay to the respondent-workman a sum of Rs.50,000/- as lumpsum compensation in lieu of retrenchment. Payment of such amount shall be made to the respondent within a period of three months from today. Writ petition is accordingly allowed in part. (MOHAMMAD RAFIQ), J. anil