Delhi Cantonment Board vs Central Govt. Industrial ...
2006 Latest Caselaw 123 Del

JUDGMENT

Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 24.2.2003 by which the writ petition has been dismissed. Heard the learned counsel for the parties and perused the record.

2. The facts in detail have been set out in the judgment of the learned Single Judge. Hence we are not repeating the same except where necessary.

3. The respondents 2 and 3 in this appeal were employed by the appellant. As held by the Supreme Court in Bangalore Water Supply and Sewerage Board v. A.Rajappa and Ors. AIR 1978 SC 538, they have to be held as workmen under the Industrial Disputes Act. Against the termination of their services they raised an industrial dispute which was referred to the Industrial Tribunal which held that there was violation of Section 25F of the Industrial Disputes Act.

4. Learned counsel for the appellant submitted that the respondents were on probation and hence their services could be terminated without enquiry. In our opinion, the basic flaw in this argument is that it relies on a principle of service law, whereas we are concerned with industrial law. The principle of one branch of law cannot be automatically applied in another branch.

5. In service law there is an important difference between a temporary employee and a permanent employee. A permanent employee has a right to the post whereas a temporary employee does not, vide State of U.P. v. Kaushal Kishore Shukla . However, there is no such distinction in industrial law. It may be noted that the Industrial Disputes Act makes no distinction between a permanent employee and a temporary employee (whether a probationer, casual, daily wage or adhoc employee).

6. The definition of 'workman' in Section 2 of the Industrial Disputes Act states that a 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 express 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 employee of a person, or

(ii)who is employed in the police service or as an officer or other employee of a person, or

(iii)who is employed mainly in a managerial or administrative capacity, or

(iv)who being employed in a supervisory capacity, draws wages exceedings 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.

7. A perusal of the above definition shows that there is no distinction in industrial law between a permanent employee and a temporary employee. As long as the person is employed to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, he is a workman under the Industrial Disputes Act, and will get the benefits of that Act.

8. Thus, it has been held in Chief Engineer (Irrigation) Chepauk, Madras v. N.Natesan (1973) II LLJ 446 (447) (Mad.) and in Management of Crompton Engineering Co.(Madras) Private Ltd. v. Presiding Officer, Additional Labour Court (1974) I LLJ 459 (Mad.) that even a temporary employee falls within the definition of workman. Similarly in Elumalai v. Management of Simplex Concrete Piles (India) Ltd. (1970) II LLJ 454 and Tapan Kumar Jena v. General Manager, Calcutta Telephones (1981) Lab.I.C. (NOC) 68 (Cal.) it was held that a casual employee is also a workman. In other words, every person employed in an industry, irrespective of whether he is temporary, permanent or a probationer is a workman vide Hutchiah v. Karnataka State Road Transport Corporation (1983) I LLJ 30(37) (Kant.), provided he is doing the kind of work mentioned in Section 2(s).

9. Since the respondents were workmen under the Industrial Disputes Act, Section 25F of the Act had to be complied with if they had put in 240 days of service in the year prior to the date of termination of service. Respondents had admittedly put in over 240 days of service. Hence the termination of their service was illegal, since compliance of Section 25F is a condition precedent to the termination of service vide State of Bombay v. Hospital Mazdur Sabha 1960 I LLJ 251 SC, National Iron & Steel Co.Ltd. v. State of West Bengal 1967 II LLJ 23 SC, Mohanlal v. Management of Bharat Electronics Ltd. 1981 LIC 806 (815) SC, Avon Services (Production Agencies) Ltd. v. Industrial Tribunal 1979 I LLJ I SC. etc.

10.There is no force in this appeal and it is dismissed.