REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4445 OF 2006

Div. Manager, New India Assurance Co.Ltd.    .......Appellant

Vs.

A. Sankaralingam                                         ……Respondent

J U D G M E N T

HARJIT SINGH BEDI, J.

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

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

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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.

3. Shri Atul Nanda, the learned counsel  for the appellant

has  first  and  foremost  argued  that  the  finding  of  fact

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arrived  at  by  the  High  Court  as  to  the  status  of  the

workman  was  incorrect  inasmuch  as  that  in  the

application  filed  by  the  respondent  on  30th May  1989

praying that his service be regularized, he had identified

himself  as a part-time Sweeper-cum-Water Carrier and

in this background to hold that he was working on full-

time basis was contrary to the record.  It has also been

pointed  that  as  per  application  dated  23rd September

1991 addressed to the appellant by the President of the

District Committee for legal aid, the workman had been

employed only as a part time Sweeper.   It  has further

been submitted that the respondent was not entitled to

the benefit of Section 25 F of the Act as he was not a

workman within the meaning of Section 2(s) thereof as in

common understanding, a day must include a full day’s

work and not a part time employment.  He has in this

connection referred us Shankar Balaji Waje vs. State of

Maharashtra 1962 (Suppl.) (1) SCR 249 in which the

scope  of  Section  79  of  the  Factories  Act  was  under

consideration  to  plead  that  as  this  provision  was

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analogous to  Section 25 B of  the Act in so far  as the

requirement of 240 days of employment was concerned,

the workman was not entitled to any relief.  He has also

pointed  out  that  this  Court  in  Uttaranchal  Forest

Hospital  Trust vs.  Dinesh  Kumar (2007)  13 SCALE

499 and in  Ram Lakhan Singh vs. Presiding Officer,

Labour  Court,  Chandigarh 1989  Labour  Industrial

Cases  1650, had considered  the  status of  a  part-time

Sweeper, (as in the present case) and had held that such

an employee could not claim the benefit of Section 25 F

of the Act.   

4. As against this Mr. S.Guru Krishna Kumar, the learned

counsel  for  the  workman  has  submitted  that  the

reference made to the Industrial Tribunal did not raise a

question as to the part-time or full time employment of

the  workman  and  the  learned  Single  Judge  and  the

Division Bench having both held on facts in his favour,

no interference was called for in this appeal.  He has also

urged that Section 2(s) which defined a “workman”, and

Section 25B which talked of ‘continuous service’ did not

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make any distinction between a part-time and full time

employee  and  if  the  Legislature  intended  to  draw  a

distinction  between  the  two  categories,  the  definition

would  have  been  in  different  and positive  terms.   The

learned counsel has also pointed out that this Court in

Shri Birdichand Sharma vs. First Civil Judge, Nagpur

&  Ors. 1961  (3)  SCR  161 and  in  Silver  Jubilee

Tailoring House & Ors.     vs. Chief Inspector of Shops &

Establishments  &  Anr.  (1974)  3  SCC  498, had

conclusively held that there was absolutely no distinction

between a full time and part-time employee and that a

workman who was working part time would not lose his

status as a workman if he was employed with more than

one  employer.   It  has  also  been  submitted  that

preponderance of judicial opinion of various High Courts

was in favour of  the above  proposition of  law and has

cited:

(a)Govind Bhai  vs  N.K. Desai (Gujarat High Court ) 1988 Lab I.C. 505 (para 6)

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(b)  Yashwant Sinha Yadav  vs. State of Rajasthan (Rajathan High Court ) 1990 Lab I.C. 1451 (para 9 to 15)

(c)  Rajaram Rokde & Bros.   vs.  Shriram (Bombay High  Court)  1977  Lab  I.C.  1594  (following  the decision in Silver Jubilee case supra – paras 2 & 5)

(d)  Dr.  P.N.  Gulati   vs.  Labour  Court,  Gorakhpur (Allahabad High Court) 1977 Lab I.C. 1088

(e)Simla Devi vs Presiding Officer 1997 (1) LLJ 788  

(f) G.M. Telecom, Nagpur vs. Naresh Brijlal Charote & anr. 2001 LAB I.C. 2127 Bombay High Court (at para 11)

(g) Coal India  vs. P.O. Labour Court 2001-II-LLJ 45 Delhi High Court (pat paras 7 and 8)

(h) Kailash Chand Saigal vs.Om Prakash & Ors.132 (2006) DLT 192 Delhi High Court (at paras 5 & 6 )”

5. We have heard the learned counsel for the parties and

gone through the record.   It will be seen that the Single Bench

and  the  Division  Bench  of  the  High  Court  have  both  on  a

consideration  of  the  oral  evidence  as  well  as  on  the

documentary  record,   given  categorical  findings  of  fact  on

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admissions made in evidence that the respondent had worked

till about 5 p.m. every day but even otherwise we are of the

opinion in the light of the various decisions of the High Courts

and the Supreme Court, that a part time employee would be a

workman  as  understood  in  Section  2(s)  thereof  and  would

have the benefit of Section 25F of the Act.  It is also relevant

that  the  reference  made  to  the  Industrial  Tribunal  was  as

under:

“Whether  the  claim  of  Sri  A. Sankaralingam that he was an employee of  New  India  Assurance  Co.  Ltd.,  from 2.1.86  to  15.3.89  as  a  Sweeper  cum Water Carrier is correct.   If  so, whether the  action  of  the  management  of  New India Assurance Co. Ltd., in terminating his  services  w.e.f.  15.3.89  is  justified? What  relief,  if  any,  to  Sri  A. Sankaralingam entitled to?”

6. From a perusal  of  the reference,  it  is  evident  that  the

question as to the status of the workman as a full time or part

time employee was not in issue and the only dispute was as to

whether he was a workman with the appellant  employer  or

not.   As  already  observed  above,  it  has  not  been  disputed

before us that the workman had indeed been employed but

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the dispute is only with regard to his status as a full time or a

part time employee.

7. In  the  light  of  the  above  decisions,  the  question  for

consideration, which has been hotly debated, is the status of a

part time employee and as to whether such an employee falls

within the definition of “workman”.  Section 2 (s) of the Act

deals with the definition of “workman” whereas section 25B

talks about “continuous service”.   Both these provisions are

reproduced below:    

“Sec.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 expressed 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

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(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.”

Sec.25-B.  Definition  of  continuous  service.- For the purposes  of this Chapter,_

(1)  a  workman  shall  be  said  to  be  in continuous service  for a period  if  he is,  for that  period,  in  uninterrupted  service, including  service  which may be  interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;

(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 –

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(i)  one  hundred  and  ninety  days  in the  case  of  a  workman  employed below ground in a mine; and  

(ii)  two  hundred  and  forty  days,  in any other case;

(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 –

(i)  ninety-five  days,  in the  case of a workman employed below ground in a mine; and  

(ii)  one  hundred  and  twenty days, in any other case.”

8. A bare perusal of the two definitions would reveal that

their applicability is not limited to only full time employees but

all that is required is that the workman claiming continuous

service must fulfill the specific conditions amongst others laid

down in the two provisions so as to seek the shelter of Section

25F.  Mr. Nanda’s reliance on Uttaranchal Forest Hospital’s

case (supra) and  Ram Lakhan’s case (supra) is misplaced.

In  Uttaranchal  Forest’s  case  (supra)  this  Court  made  a

passing reference to the status of a part time employee, but

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the  main  issue  before  the  Court  was  as  to  whether  the

workman had, in fact, put in 240 days of service which would

entitle him to the benefit of Section 25F of the Act.  This is

what the Court had to say:

“It is undisputed that the work of cleaning the hospital has been given to a contractor w.e.f.  17.8.1996.  Materials  were  placed before  the  Labour  Court  to show that  the workman was engaged for doing a part-time job and that he had worked for a few days in several months. The Labour Court itself on  consideration  of  the  documents  and records produced noted as follows:-

“It is evident that the workman had worked in August  1996-16  days,  July,  1996 –  30 days, May, 1996 – 30 days, April, 1996 – 30 days,  March,  1996  –  29  days,  February, 1996  –  29  days,  January,  1996  31  days, December, 1995 –31 days, November, 1995 –20  days  (full),  October,  1995  –  19  days (full)  September,  1995  –  25  days  (full)  @ Rs.35/-  per  day.  In  addition  to  this,  in November, 1995 – 3 days, October, 1995 – 9 days @ Rs.20/- per day towards part time work and in September,  1995 – days part time @ Rs.5/- per day, had worked.”

The basic difference between a person who is engaged on a part-time basis for one hour or few hours and one who is engaged as a daily wager on regular basis has not been kept in view either by the Labour Court or by  the  High  Court.  The  documents  filed clearly  establish  that  the  claim  of  having

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worked  more  than  240  days  is  clearly belied.

The  stand  of  the  appellant  that  the respondent  was  called  for  work  whenever work  was  available,  and  as  and  when required  and  that  he  was  not  called  for doing  any  work  when  the  same  was  not available has been established. The Labour Court  itself  noted  that  the  workman  was engaged  in  work  by  others  as  he  was working in the appellants’ establishment for one hour or little more on some days. It is also  seen  from  the  documents  produced before  the  Labour  Court  that  whenever respondent  was  working  for  full  period  of work he was being paid Rs.35/- per day and on other days when he worked for one hour he was getting Rs.5/-.”

9. In  Ram Lakhan’s case (supra), the issue did come up

before this Court and while construing the scope of Section 2

(s)  and Section  25B  of  the  Act,  this  Court  observed  that  a

person working on a part time basis could not  strictu sensu

claim to be in continuous employment of the employer but the

larger question as to whether such an employee could be a

workman under Section 2(s) of the Act so as to claim benefit of

Section 25F thereof was being left open for future discussion.

As already held above on facts, we have endorsed the view of

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the High Court that the workman had, in fact, been working

virtually  on  a  full  time  basis  till  5  p.m.  and  had  worked

continuously for more than 3 years from 2nd January 1986 to

15th March 1989.

10. On the contrary, the preponderance  of  judicial  opinion

that a workman working even on a part time basis would be

entitled to benefit of Section 25F of the Act is clear from the

various judgments which we have referred to above.  In Silver

Jubilee Tailoring House case (supra) which is  a judgment

rendered by a 3-Judge Bench of this Court, the question was

as to whether the workers who were paid on piece-rate basis

though  working  in  the  shop,  were  workmen  in  terms  of

Section 2(s) of the Act.  That is what the Court had to say:

“11. The question for decision was whether the agrarians were workmen as defined by Section 2(s) of the Industrial Disputes Act of 1947 or whether they were independent contractors. The Court said that the prima facie test to determine whether there was relationship  between  employer  and employee  is  the  existence  of  the  right  in the  master  to  supervise  and  control  the work  done  by  the  servant  not  only  in matter  of  directing  what  work  the employee is to do but also the manner in which  he  has  to  do  the  work.  In  other

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words,  the  proper  test  according  to  this Court  is,  whether  or  not  the  master  has the  right  to  control  the  manner  of execution of  the work. The Court  further said that the nature of (sic) extent of the control  might  vary  from  business  to business and is by its nature incapable of precise definition, that it is not necessary for holding that a person is an employee, that  the  employer  should  be  proved  to have exercised control over his work, that even the test of control over the manner of work  is  not  one  of  universal  application and  that  there  are  many  contracts  in which  the  master  could  not  control  the manner in which the work was done.”

11. For  arriving  at  this  conclusion,  the  Supreme  Court

referred  to  various  judgments  of  this  Court  including

Birdichand  Sharma’s  case  (supra)  but  distinguished  the

judgment in Shankar Balaji Waje’s case (supra) (rendered by

two Hon’ble 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

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absolutely no supervision of the so called employer over his

work.   In conclusion, the Bench observed in (paragraph 37):

“That the 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 principally employed.”

12. It will 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

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the workman was working under the control and supervision

of the appellant employer is admitted on all sides.

13. We also find that the preponderance of judicial opinion in

the  High  Courts  is  also  to  this  effect.   As  a  sample  we

reproduce  passages  from  two  such  judgments.  A  Division

Bench of the Punjab and Haryana High Court in Simla Devi’s

case (supra), has observed as under:

“A  plain  reading  of  the  definition  of “workman”  does  not  exclude  the  part- time  workmen  from  the  definition  of “workman”.  Such  exclusion  cannot  be read  into  it  ipso-facto,  except  if  it  is expressly  provided  or  implied  that  no other interpretation is possible, which is not the case in the case in hand. We find support  for  our  view  from  the observations made by the Supreme Court in  Birdhichand  Sharma  v.  First  Civil Judge,  (1961-II-LLJ-86),  wherein  the Supreme  Court  in  facts  and circumstances of the case, found that the workers even doing the job at their home are  still  workmen.  Thus  we  are  of  the considered  view  that  a  part-time workman shall fall within the definition of “workman”  and the  finding  returned  by the Labour Court that a part-time worker is not a workman, cannot be sustained. We may hasten to add that nothing has been pointed out that on any principle of equity,  justice,  good  conscience  or  the technical  interpretation  of  the  definition

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of  workman  that  a  part–time  workman cannot  be  termed  as  a  workman  is unknown to the industrial world.”

14. Likewise in G.M. Telecom, Nagpur’s case (supra), it has

been observed thus:

“The definition of ‘workman’ as given in the  Act  does  not  make  any  distinction between full time employee and part time employee. It does not lay down that only a  person  employed  for  full  time  will  be said to be a workman and that the one who is employed for part time should not be taken as a workman. What is required is that the person should be employed for hire  to  discharge  the  work  manual, skilled or unskilled etc. in any industry. If  this  test  is  fulfilled,  a  part  time employee  can  also  be  said  to  be  a ‘workman’. Now, if this test is applied to the present case, it can very well be said that respondent No.1, who was appointed as a part-time sweeper and was required to  do  manual  and  unskilled  work  is  a ‘workman’  within  the  meaning  assigned to the  said terms in the Act  and as he worked for more than 240 days in a year, the provisions of Section 25F of the Act are applicable to the case in hand and as neither  any  notice,  as  contemplated under Section 25F of the Act, was served upon  the  respondent  No.1  nor  he  was paid  compensation  in  lieu  of  the  said notice,  nor  was  paid  retrenchment compensation, it cannot be said that the provisions of Section 25F of the Act were

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duly complied with. It has been time and again held by this Court as well as by the Apex  Court  that  the  non-compliance  of the mandatory provisions of Section 25F of the Act would render the termination of service void ab initio. I am fortified in this view by a decision of the Apex Court in the case in Mohanlal vs. Management of M/s. Bharat Electronis Ltd., (1981) 3 SCC 225.”

15. Similar views have been expressed in two Single Bench

decisions of the Delhi High Court  Coal India Ltd. and

Kailash Chand Saigal (supra),  by a Single Judge of the

Gujarat High Court in Govind Bhai’s case (supra) and a

Division Bench of the Rajasthan High Court in Yashwant

Sinha  Yadav’s  case  (supra).   We  are  in respectful

agreement with these opinions as well.   

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.

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………………………… ….J.

( Tarun Chatterjee )

……………………………..J. (Harjit Singh Bedi)

New Delhi, Dated: October 03, 2008

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