Satto vs Head Mistress

G.S. Sandhawalia, J.—Present writ petition has been filed by the workwoman against the award dated 26.11.2008 (Annexure P5) whereby a sum of Rs. 40,000/- has been awarded to the workwoman instead of reinstatement in service, by partly accepting the reference.

A perusal of the paperbook would go on to show that the workwoman, in her demand notice dated 24.02.2000 (Annexure P1) took the plea that she was appointed in November, 1994 as a Sweeper on part-time basis and later on, she was appointed as a full-time employee in the month of July, 1995 and she was regularly drawing her salary. On 21.12.1999, she received a letter that her services could not be regularized in view of the order dated 30.12.1998 and 25.02.1999 as she had not completed 6 years of service. When she went to the school to do her duties, it was found that one Radha Rani had been appointed as Sweeper in her place and accordingly, she claimed violation of the provisions of Sections 25F & 25G of the Industrial Disputes Act, 1947 (for short, the Act'')

On the matter being referred to the Labour Court, the demand notice was adopted which was contested by the State on the ground that she was part-time Sweeper and not permanent and a regular Sweeper had been appointed and there was no need for further engagement of the workwoman and the engagement had come to an end on account of non-renewal and therefore, it was not retrenchment. It was denied that she was appointed in the month of November, 1994 as a Sweeper and she was drawing Rs. 1095/- per month. A sum of Rs. 7148/- had been paid in the month of April, 2001 as full and final settlement and sanction was granted vide letter dated 30.03.2001. Sanction had also been given by the District Education Officer for the year 1999-2000 vide letter dated 29.05.2000. It was admitted that the case of the workwoman was considered for regularization but as she did not fulfill the requisite qualifications, as per policy made by the Department for regularization of part-time class IV employees and the decision was not in her favour and accordingly, she was discharged from duty on 18.02.2000 on account of Radha Rani joining her services as a regular employee. The details of the payments made in the year 1995-96 to 1999-2000 were also given.

A rejoinder was filed by the petitioner-workwoman whereby she took the plea that she was performing her duties as a full-time Sweeper.

The Labour Court, after examining the pleadings and the statement of the petitioner-workwoman as WW1 and the Management witness as MW1, Smt. Vimal Kumari, denied the relief of reinstatement and granted the relief of compensation, solely in view of the judgment of the Apex Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, that the employee could not claim any right on the post.

There is no denying the fact that the claimant had worked for 4 years 11 months 7 days but was denied the relief of regularization. A direction had been issued during the proceedings to place on record an affidavit explaining as to why the regularization had been denied. In pursuance of the said direction, affidavit of Sh. Rajiv Kumar, District Education Officer, NIT, Faridabad, has been filed. Along with the said affidavit, instructions dated 30.12.1998/25.02.1999 have been attached. A perusal of the said instructions would go on to show that candidates recruited on part-time basis through direct recruitment should have at least 6 years of experience on the post. It is obvious that it was in such circumstances that the petitioner was not granted the benefit of regularization in spite of the fact that the school had recommended her case but she did not fall within the ambit of the abovesaid instructions and thus, the relief claimed was not granted. It is also a matter of fact that the mandatory procedure u/s 25F of the Act was never followed since the Management witness admitted in her cross-examination that no notice pay and retrenchment compensation was given to the workwoman and that a regular employee had joined in her place, which is also a matter of record. The Labour Court has also recorded this finding but denied the relief solely in view of the judgment of the Apex Court in Uma Devi (supra).

Recently, the Apex Court in Harjinder Singh Vs. Punjab State Warehousing Corporation, examined the issue of Section 25F of the Act and held that the mandatory requirements cannot be dispensed with once the worker has completed 240 days. There is no denying the fact that the petitioner has completed the said mandatory period. In Devinder Singh Vs. Municipal Council, Sanaur, it was held that the source of employment and the conditions of employment/contract of service were not relevant to decide whether or not a person should be given the benefits and there was no distinction between the full-time and part-time employment in the language of Section 2(s) of the Act. Relevant observations read as under:

"13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act.

It is apposite to observe that the definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman."

Reference was made to the earlier judgment of Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1 Panipat (Haryana), and it was, accordingly, held that the worker would be entitled to reinstatement.

In the present case, admittedly, the work in question continues and the Management has employed a person on regular basis. In such circumstances, in the case of Anoop Sharma (supra) in which case, reference is also made to the judgment of the Apex Court in Uma Devi (supra), it was held that for the purposes of deciding the issue of retrenchment and violation of the provisions of the Act, the observations made in the case of Uma Devi (supra) will not come in the way. Relevant observations read as under:

"19. The judgment of the Constitution Bench in Secretary, State of Karnataka vs. Uma Devi (supra) and other decisions in which this Court considered the right of casual, daily wage, temporary and ad hoc employees to be regularised/continued in service or paid salary in the regular time scale, appears to have unduly influenced the High Court''s approach in dealing with the appellant''s challenge to the award of the Labour Court. In our view, none of those judgments has any bearing on the interpretation of Section 25F of the Act and employer''s obligation to comply with the conditions enumerated in that section."

Accordingly, keeping in view the above cumulative discussion and on account of the fact that the workwoman had completed 240 days of service, this Court is of the opinion that the Labour Court was not justified in granting only compensation and rather the workwoman was entitled to be reinstated, having served for almost 5 years. Accordingly, the impugned award is liable to be modified to the extent that the workwoman will be held liable for reinstatement.

The second question which arises for consideration is whether the workwoman is entitled for back wages. The sum of Rs. 40,000/- which was awarded by the Labour Court was not paid to the workwoman immediately when the award in question was rendered, i.e., on 26.11.2008. Once this Court issued notice of motion 02.09.2009, the said amount has been then deposited with the Labour Court on 30.10.2009, almost a year later. The workwoman was working as a part-time Sweeper and she must have worked elsewhere during the pendency of the reference, i.e., from 2000 to 2008. Accordingly, this Court is of the opinion that the amount of Rs. 40,000/-, which has been paid to her, would be adequate compensation for her backwages and she would not be entitled for anything more.

Accordingly, the present writ petition is allowed, to the extent that the workwoman is directed to be reinstated with continuity of service, on the same terms and conditions which she was earlier serving and she would also be held entitled for Rs. 40,000/-, as backwages, for the period of 8 years. Since the workwoman has remained out of employment from 2000, the directions issued by this Court be complied with within a period of 2 months from today.