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CASE NO.: Appeal (civil)  5423 of 2007

PETITIONER: Uttaranchal Forest Hospital Trust

RESPONDENT: Dinesh Kumar

DATE OF JUDGMENT: 27/11/2007

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL No. 5423 OF 2007 (Arising out of S.L.P. (C) No.25070 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of Uttaranchal High Court. Appellant had  questioned the correctness of the order passed by the  Presiding Officer, Labour Court, Haldwani, Nainital (in short  the ’Labour Court’) in the writ petition. 3.      The Claim of the respondent was that he was working as  a sweeper in the hospital of the appellant and was appointed  on 1.7.1995 and worked up to 16.8.1996. But his services  were terminated on 17.8.1996 without any notice and without  any retrenchment allowances. A dispute was raised which was  referred to the Labour Court for adjudication under Section 6N  of the U.P. Industrial Disputes Act, 1947 (in short ’the Act’).  The Labour Court held that the respondent was entitled to the  benefit of reinstatement and 50% of back wages. The stand of  the appellant that the respondent was engaged on a daily wage  basis for doing a part time job of sweeping was held to be not  acceptable. It was held that the respondent had rendered more  than 240 days of service. Before the High Court, the stand of  the appellant was that the respondent did not render service  for more than 240 days as claimed. His appointment was only  on temporary basis and that too for one hour daily. This stand  was not accepted by the High Court.

4.      Learned counsel for the appellant in support of the  appeal submitted that voluminous documents were produced  to show that the respondent was working on a temporary  engagement basis and that too for one hour or some times for  a little more than an hour. The question for having worked  more than 240 days in the year preceding the alleged  termination did not arise.  

5.      Learned counsel for the respondent on the other hand  supported the order passed by the Labour Court and the High  Court.

6.      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

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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 \026 3 days, October, 1995 - 9 days @  Rs.20/- per day towards part time work and in  September, 1995 \026 3 days part time @ Rs.5/-  per day, had worked."

7.      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  worked more than 240 days is clearly belied.  

8.      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 the aforesaid position, the inevitable conclusion is  that the Labour Court and the High Court were not justified  in directing the reinstatement with partial back wages.

10.     The appeal is allowed with no order as to costs.

11.     It is made clear that the fact we have allowed the appeal  shall not stand in the way of the appellant giving engagement  to the respondent on such terms as deemed proper.