Div.Mang., New India Assurance Co. Ltd vs A.Sankaralingam

1. The facts leading to this appeal are as under:

2. 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 2 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 3 hours a day was factually wrong. The learned Single Judge further held that the point for decision was not the workman's 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.

(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer -

(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -

(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -

16. The question 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. The appeal is accordingly dismissed. 20