Case: Div.Mang., New India Assurance Co. Ltd Vs. A.Sankaralingam

The respondent-writ petitioner (hereinafter called the ‘workman) was appointed on 2nd January 1986 as a Sweeper-cum-Water Carrier in the Office of the Divisional Manager, New India Assurance Company Ltd., Trivandrum Road, Tirunelveli (respondent No.2 in the High Court) and herein called the "employer", on a monthly wage of Rs.130/-. He thereafter made a request that his services be regularized but was on the contrary, informed orally that he was not required to work with effect from 15th March 1989. He thereupon sought the intervention of the appropriate Government praying for his reinstatement, but conciliation efforts having failed, the matter was referred to the Industrial Tribunal for decision. The Tribunal in its award dated 10th September 1998 held that the claimant before it, was not a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947 (hereinafter called the "Act") as he had worked only as a part-time employee and that too on an ad-hoc basis. The Tribunal also observed that as the duty hours of the workman were only one or two hours a day for which he was paid a sum of Rs.150/- p.m., and as he was entitled to work elsewhere as well, revealed his status as such. The workman challenged the award of the Tribunal before the Madras High Court. The learned Single Judge held that the fact that the workman had worked from the years 1986-1989 and as per the oral evidence, he had worked in the office till 5 O clock had been admitted and it thus appeared that the finding that he was working only 2 hours a day was factually wrong. The learned Single Judge further held that the point for decision was not the workmans plea for regularization but as to whether his services had been wrongly terminated ignoring the procedure for retrenchment envisaged under Section 25F of the Act and as such, the retrenchment itself was bad in law. The Court relied on section 2 (s) and Section 2B of the Act to hold that these two definitions were not restricted in applicability to only full time employees as the all embracing tenor of the definition took within its ambit even part time employees. The learned Single Judge accordingly quashed the award of the Tribunal and ordered the re-instatement of the workman with full back wages and left the matter of regularization of service to be considered by the employer in accordance with law. This judgment was confirmed in appeal by the Division Bench. Dissatisfied with the judgment of the learned Single Judge, the employer is in appeal.

Reasoning:
For arriving at this conclusion, the Supreme Court referred to various judgments of this Court including Birdichand Sharmas case (supra) but distinguished the judgment in Shankar Balaji Wajes case (supra) (rendered by two Honble Judges) by observing that the workman who was claiming that status was not called upon to attend duties in the factory itself as he was permitted to take the tobacco from the factory owner and role the bidis at his residence at any time without any fixed hour of work and that there was absolutely no supervision of the so called employer over his work. In conclusion, the Bench observed in (paragraphthe workers are not obliged to work for the whole day in the shop is not very material. There is of course no reason why a person who is only employed part time, should not be a servant and it is doubtful whether regular part time service can be considered even prima facie to suggest anything other than a contract of service. According to the definition in Section 2(14) of the Act, even if a person is not wholly employed, if he is principally employed in connection with the business of the shop, he will be a ‘person employed within the meaning of the sub-section. Therefore, even if he accepts some work from other tailoring establishments or does not work whole time in a particular establishment, that would not in any way derogate from his being employed in the shop where he is principallywill be seen from a perusal of the aforequoted passages that the observations made therein clearly suggest that a workman employed on a part time basis but under the control and supervision of an employer is a workman in term of Section 2(s) of the Act, and is entitled to claim the protection of Section 25F thereof, should the need so arise. The fact that the workman was working under the control and supervision of the appellant employer is admitted on allquestion as to whether a part-time workman would be covered within the definition in Section 2(s) of the Act and whether he would be entitled to the benefit of continuous service under section 25B and the benefit of Section 25F, is answered in favour of the workman-respondent.