Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment

Judgment:

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			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'State of Rajasthan and ors.',
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		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
)
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G.S. Singhvi, J.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
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		'circuit' => null
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	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
)
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2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the Industrial Disputes Act, 1947, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
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	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
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	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the Industrial Disputes Act, 1947 and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '753315',
	(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
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$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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$args = array(
	(int) 0 => '753315',
	(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
)
$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
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		'pubs' => '(1994)IILLJ474Raj',
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		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
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	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.

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			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the Industrial Disputes Act, 1947. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
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		'circuit' => null
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	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
)
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Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
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	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
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		'pubs' => '(1994)IILLJ474Raj',
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		'respondent' => 'State of Rajasthan and ors.',
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	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.

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			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '(1994)IILLJ474Raj',
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		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
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	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the Industrial Disputes Act, 1947.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
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			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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10. The provisions contained in Section 25F of the Industrial Disputes Act, 1947 have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
)
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'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
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	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
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	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '(1994)IILLJ474Raj',
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		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
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	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
)
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5(d). For patently false reasons;

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
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		'circuit' => null
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	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
)
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If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
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			'circuit' => null
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	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
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	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kanhaiya-lal-vs-state-rajasthan-ors'
$args = array(
	(int) 0 => '753315',
	(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
)
$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kanhaiya-lal-vs-state-rajasthan-ors'
$args = array(
	(int) 0 => '753315',
	(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
)
$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
)
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We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
)
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12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the Industrial Disputes Act, 1947.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
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			'circuit' => null
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	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
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$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
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	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
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13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.

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	'title_for_layout' => 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '753315',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
			'appealno' => 'S.B.C.W.P. No. 5813/1990',
			'appellant' => 'Kanhaiya Lal',
			'authreffered' => '',
			'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
			'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
			'caseanalysis' => null,
			'casesref' => 'H.D. Singh v. Reserve Bank of India;',
			'citingcases' => '',
			'counselplain' => ' Akil Simlote, Adv.',
			'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1991-11-28',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.S. Singhvi, J.',
			'judgement' => '<p style="text-align: justify;">G.S. Singhvi, J.</p><p style="text-align: justify;">1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p style="text-align: justify;">2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p style="text-align: justify;">3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p style="text-align: justify;">4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p style="text-align: justify;">5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p style="text-align: justify;">6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p style="text-align: justify;">7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p style="text-align: justify;">'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p style="text-align: justify;">Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p style="text-align: justify;">Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p style="text-align: justify;">Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p style="text-align: justify;">8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p style="text-align: justify;">9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">10. The provisions contained in Section 25F of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p style="text-align: justify;">11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p style="text-align: justify;">'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p style="text-align: justify;">The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p style="text-align: justify;">'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p style="text-align: justify;">5(d). For patently false reasons;</p><p style="text-align: justify;">10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p style="text-align: justify;">If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p style="text-align: justify;">'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p style="text-align: justify;">'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p style="text-align: justify;">We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p style="text-align: justify;">It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p style="text-align: justify;">12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a>.</p><p style="text-align: justify;">13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1994)IILLJ474Raj',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kanhaiya-lal-vs-state-rajasthan-ors',
	'args' => array(
		(int) 0 => '753315',
		(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
	)
)
$title_for_layout = 'Kanhaiya Lal Vs State of Rajasthan and ors - Citation 753315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '753315',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 2',
		'appealno' => 'S.B.C.W.P. No. 5813/1990',
		'appellant' => 'Kanhaiya Lal',
		'authreffered' => '',
		'casename' => 'Kanhaiya Lal Vs. State of Rajasthan and ors.',
		'casenote' => ' -  -  5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the Industrial Disputes Act, 1947. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee. Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j). Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. - 5(b). Termination not in good faith, but in the colourable exercise of the employer's right; The very idea of issuing such a circular deserves to be condemned and deprecated. - The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The plea that the appellant was a badli worker also has to fail. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
		'caseanalysis' => null,
		'casesref' => 'H.D. Singh v. Reserve Bank of India;',
		'citingcases' => '',
		'counselplain' => ' Akil Simlote, Adv.',
		'counseldef' => ' J.M. Saxena, Dy. Govt. Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1991-11-28',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.S. Singhvi, J.',
		'judgement' => '<p>G.S. Singhvi, J.</p><p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.</p><p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.</p><p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.</p><p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.</p><p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.</p><p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.</p><p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):</p><p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.</p><p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).</p><p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.</p><p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.</p><p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.</p><p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.</p><p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.</p><p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-</p><p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.</p><p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-</p><p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;</p><p>5(d). For patently false reasons;</p><p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'</p><p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-</p><p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:</p><p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.</p><p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.</p><p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.</p><p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.</p><p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1994)IILLJ474Raj',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '753315',
	(int) 1 => 'kanhaiya-lal-vs-state-rajasthan-ors'
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$url = 'https://sooperkanoon.com/case/amp/753315/kanhaiya-lal-vs-state-rajasthan-ors'
$ctype = ' High Court'
$caseref = 'H.D. Singh v. Reserve Bank of India<br>'
$content = array(
	(int) 0 => '<p>G.S. Singhvi, J.',
	(int) 1 => '<p>1. The petitioner, who is physically handicapped and who belongs to Scheduled Caste, has filed this writ petition challenging Exhibit-4 dated September 6, 1990 by which his service, as a temporary Part-time Farash, has been terminated on the basis of the directions issued by the Director, Social Welfare Department, vide his circular dated August 7, 1990.',
	(int) 2 => '<p>2. Briefly, the case of the petitioner is that he was appointed in the service of the Social Welfare Department in the year 1986 and was posted under the District Children Officer, Social Welfare Department, Sikar with effect from October 1, 1986 and was paid wages of Rs. 11 per day. He has continuously worked under Respondent No. 3 as a Class IV employee and has discharged duties for eight hours per day. Vide his letter dated March 11, 1988, the Deputy Director, Social Welfare Department, wrote to the District Children Officer, Social Welfare Department, Sikar to regularise the service of the petitioner, who was described as a physically handicapped person, because the Government had issued instructions for regularisation of the services of the persons who were physically handicapped and had been appointed in the service upto March 31, 1988. The Government in Department of Personnel also issued circular dated December 28, 1989 for the purpose of regularisation of the services of physically handicapped persons. By that circular, all the Heads of the Departments and appointing authorities were directed to regularise the service of the physically handicapped persons who were appointed in the service upto March 31, 1988. Notwithstanding these circulars, Respondent No. 3 issued order dated September 6, 1990 terminating service of the petitioner on the basis of the circular issued on August 7, 1990 by the Director, Social Welfare Department. As per that circular, copy of which has been placed on record as Exhibit-5, the Director had instructed that since Social Welfare Department has been treated as 'industry' under the <a>Industrial Disputes Act, 1947</a>, the competent authorities should not allow part-time and daily wage employees to complete 240 days of service. All the competent authorities were directed to terminate the services of those part-time and daily wage employees who were to complete 240 days of service. It was also observed that the responsibility of not taking action on the basis of this circular would be of the competent authority. After five days of the termination of the service of the petitioner, he was again employed as part-time Farash on consolidated salary of Rs. 350/-per month by an order issued on September 12, 1990 by the District Children Officer, Sikar. According to the petitioner, he is working as Farash in the service of the Social Welfare Department on the basis of this order.',
	(int) 3 => '<p>3. The petitioner has claimed that from 1986 to 1990 he had rendered almost four years' service and had acquired a right to be regularised in service because he is a physically handicapped person and he belongs to Scheduled Caste. As per Government Circulars and instruction, all those physically handicapped persons who have been appointed in the service upto March 31, 1988 were to be regularised. Instead of regularising the service of the petitioner, the Respondents have acted arbitrarily and terminated the service of the petitioner without compliance of the requirements of the provisions of the <a>Industrial Disputes Act, 1947</a> and particularly those contained in Section 25F. The action of the Respondents in bringing about termination of the service of the petitioner amounts to unfair labour practice. The petitioner has claimed that his service should be regularised and he should be paid salary for the period between September 6, 1990 to September 12, 1990.',
	(int) 4 => '<p>4. In reply to the writ petition, the respondents have asserted that the petitioner was appointed as Farash on contract basis at the rate of Rs. 250/- per month on purely temporary basis and his service could be terminated without prior notice. The respondents have stated that the petitioner had never worked for eight hours. His basic job was to clean the Office. If he remained in the Office, it was his own sweet will. The petitioner was never directed to work in the Office for the eight hours or more. The respondents have admitted the fact that the Deputy Director had written a recommendatory letter dated March 11, 1988 but have farther stated that since the petitioner was not appointed on daily wages, therefore, his service could not be regularised. There is no regular post of Class IV or daily wage employee in the office. The circulars issued by the Government are not applicable to the case of the petitioner and the competent authority had a right to terminate his service as per the terms of contract on the basis of which the petitioner was appointed as part-time employee.',
	(int) 5 => '<p>5. The main argument advanced by the learned counsel for the petitioner is that the termination of the service of the petitioner by order dated September 6, 1990 is absolutely illegal and void because the order of termination has been passed in clear violation of the provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a>. The circular issued by the Director, Social Welfare Department is clearly an act of unfair labour practice. Shri Simlote has further argued that the Director, Social Welfare Department has issued the circular with the sole object of depriving the right of regularisation and permanency to the daily rated employees. The whole object of issuing such circular is to somehow or other create a situation where the workmen cannot claim regularity of service and the benefit under the various industrial legislation. Shri Simlote has also argued that the petitioner has served the Respondents for a period of more than 5 years by now. Although the Government has issued circulars from time to time for giving the benefit to the members of the Scheduled Caste and physically handicapped persons and the Deputy Director of the Department has recommended that the service of the petitioner be regularised, the respondents have resorted to the unfair labour practice in keeping the petitioner as a daily wage earner or by appointing him on consolidated salary in the garb of describing him as part-time employee.',
	(int) 6 => '<p>6. Shri Saxena, learned Dy. Government Advocate, argued that the petitioner was engaged on a purely temporary basis as part-time employee. He is being paid consolidated salary per month according to the nature of his work. The work being done by the petitioner is of a limited duration. His work is not of continuous duration and he does not work during the entire period for which a regular employee discharges his duties in the Department. Therefore, the petitioner cannot claim that he is entitled to be regularised in the service. Merely because the petitioner is a physically handicapped person or he belongs to Scheduled Caste, he cannot be given the benefit of regularisation in service. The Circulars issued by the Government in Department of Personnel are applicable only to the daily wage employees. Since the petitioner is not a daily wage earner he cannot be absorbed permanently in the service of the Government. Shri Saxena argued that the circulars issued by the Director, Social Welfare Department cannot be termed as arbitrary or discriminatory or an act of unfair labour practice.',
	(int) 7 => '<p>7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under Section 2(j) of the <a>Industrial Disputes Act, 1947</a>. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental functions such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349). In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947 Act. Their Lordships observed as under: (at p. 405):',
	(int) 8 => '<p>'Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.',
	(int) 9 => '<p>Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).',
	(int) 10 => '<p>Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby'.',
	(int) 11 => '<p>Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab (1988-II-LLJ-149) wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under Section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of the 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Section 2(j) of the 1947 Act.',
	(int) 12 => '<p>8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated September 6, 1990 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of the Social Welfare Department on October 1, 1986. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the Department from October 1, 1986, when his service was terminated by order dated September 6, 1990. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continued ill health. Thus the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Section 2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as retrenchment was not accepted by the Supreme Court in State Bank of India v. N. Sundara Money (1976-I-LLJ-478). The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Milts Ltd. v. Shambbunath Mukherjee (1978-I-LLJ-1), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984-I-LLJ-110), Gammon India Ltd. v. Niranjan Das (1984-I-LLJ-233). Despite these decisions, the question was again raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990-II-LLJ-70) their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of these pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Section 2(oo) of 1947 Act.',
	(int) 13 => '<p>9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the term 'workman' as defined in Section 2(s) of the 1947 Act. This question, in my opinion does not present a difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan (1991-I-LLJ-501) examined this very question at length and after considering the definition of the term 'workman', as given in Section 2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part-time employee is a workman as defined in Section 2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of this decision, it must be held that the petitioner falls within the definition of the term 'workman' under the <a>Industrial Disputes Act, 1947</a>.',
	(int) 14 => '<p>10. The provisions contained in Section 25F of the <a>Industrial Disputes Act, 1947</a> have been held to be mandatory by their Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha (1960-I-LLJ-251). Their Lordships held that termination of service of a workman without following the provisions contained in Section 25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P.Dave (1975-II-LLJ-499) a Division Bench of this Court had examined the scope of Section 25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retrenchment of the service of a workman in violation of the provisions contained in Section 25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days of service during a period of 12 months preceding the date of termination of his service i.e., on September 6, 1990, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Section 25F(b) of the 1947 Act. Therefore, both the clauses of Section 25F have been breached by the respondents while ordering termination of the service of the petitioner on September 6, 1990. This clear violation of the Section 25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated September 6, 1990 is void ab initio.',
	(int) 15 => '<p>11. The next important question which requires examination and determination by the Court is as to whether the Director, Social Welfare Department was justified in issuing the circular dated August 7, 1990 whereby the competent authorities have been directed not to allow part-time or daily wage employees to complete 240 days of service and they have been directed to terminate the service of such workmen before completion of 240 days of service. The sole object of issuing the aforesaid circular is that the persons who fall within the scope of the term workman, must not be allowed to complete 240 days of service, or else in bringing about the termination of their service, the departmental authorities will have to comply with the rigorous provisions contained in Section 25F of 1947 Act and the workman would claim benefit of various industrial legislations. The term 'unfair labour practice' has been defined in Section 2(ra) of 1947 Act. This definition reads as under:-',
	(int) 16 => '<p>'Unfair labour practice' means any of the practices specified in the Fifth Schedule'.',
	(int) 17 => '<p>The provisions contained in the Fifth Schedule of 1947 Act, to which a reference has been made in Section 2(ra), specifies the acts which can be termed as unfair labour practice, on the part of the Employer and the Trade Unions of the employees. Clause 5(b), Clause 5(d) and Clause 10 of the Fifth Schedule enumerate certain actions of the employer which would come within the scope of the term 'unfair labour practice'. These clauses are as under:-',
	(int) 18 => '<p>'5(b). Termination not in good faith, but in the colourable exercise of the employer's right;',
	(int) 19 => '<p>5(d). For patently false reasons;',
	(int) 20 => '<p>10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'',
	(int) 21 => '<p>If a private employer was to issue an order with the object of depriving a workman of his rights under the industrial laws, the competent Industrial Court could always declare it to be an act of unfair labour practice and mala fide. It is most unfortunate that such a practice is sought to be adopted by a public employer and not an ordinary public employer but the State which claims itself to be a Social Welfare State or which claims itself to work on the principle of socialism. The very idea of issuing such a circular deserves to be condemned and deprecated. Keeping employees as daily wagers or part-time employees for years together and then making efforts to prevent them from earning or enjoying the benefits admissible to them under the industrial law cannot at all be appreciated. A similar circular had been issued by the Reserve Bank of India and the Supreme Court had an occasion to examine the justification of issuance of such circulars in H.D. Singh v. Reserve Bank of India, (1985) 4 SCC 201 Their Lordships referred to the circular in para 13 and observed as under:-',
	(int) 22 => '<p>'The confidential circular directing the officers that workmen like the appellant should not be engaged continuously but should, as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:',
	(int) 23 => '<p>'To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen'.We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.',
	(int) 24 => '<p>We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the Industrial Law. It has disturbed us to find that the appellant was denied job because he had become better qualified. Perhaps aware of the grave unemployment problem facing the youth of this country and also not aware of the fact that graduates, both boys and girls, sweep our roads and post-graduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget to reciprocate to prevent industrial unrest. In this case, for example, the bank should have treated the appellant as a regular hand in List II. Instead, the bank has, by adopting dubious methods, invited from us remarks which we would have normally avoided'.',
	(int) 25 => '<p>It is more unfortunate that despite the decision of the Apex Court a Department which itself has the nomenclature of Social Welfare Department should have thought it necessary to issue a circular which have the effect of depriving the poor workmen of their legitimate rights under the Industrial Legislations. I have no hesitation in holding that by issuing the circular dated August 7, 1990 the Social Welfare Department has indulged in unfair labour practice. Circular dated August 7, 1990 is clearly against the very spirit with which the Industrial Disputes Act has been enacted and it is clearly an act of unfair labour practice as defined in Section 2(ra) of 1947 Act.',
	(int) 26 => '<p>12. So far as the claim of the petitioner for regularisation of the service is concerned, the Respondents have tried to raise a dispute on the question of facts. The petitioner has undoubtedly been serving the Department for the last more than 5 years. However, sufficient material has not been produced on record to show as to for what duration the petitioner discharges his duties every day. It is a fit case in which the departmental authorities themselves should examine the total period for which the petitioner discharges his duties. Moreover, if a post of Class IV employee is available, the departmental authorities should take sympathetic and compassionate view of the matter and then regularise the service of the petitioner. Adecision in this regard must be taken by them within a period of three months from the date of filing of copy of this order. If the departmental authorities pass an order that the petitioner is not entitled to regularisation, the petitioner may avail his remedy either by filing a fresh writ petition or by invoking the provisions of the <a>Industrial Disputes Act, 1947</a>.',
	(int) 27 => '<p>13. The result of the above discussion is that the writ petition succeeds and it is hereby allowed. The order of termination of his service issued on September 6, 1990 is declared void and it is hereby quashed. Circular dated August 7, 1990 issued by the Director, Social Welfare Department is declared as an act of unfair labour practice and is hereby quashed. The respondents are directed to treat the petitioner's service as continuous as if order dated September 6, 1990 had not been passed. The petitioner shall be given all consequential benefits on that basis. The respondents are also directed to examine the question of regularisation of the service of the petitioner within three months and pass necessary order in accordance with rules. Parties are left to bear their own costs.<p>',
	(int) 28 => '<p>'
)
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$cnt = (int) 29
$i = (int) 28
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Subject	Labour and Industrial
Court	Rajasthan High Court
Decided On	Nov-28-1991
Case Number	S.B.C.W.P. No. 5813/1990
Judge	G.S. Singhvi, J.
Reported in	(1994)IILLJ474Raj
Acts	Industrial Disputes Act, 1947 - Sections 2
Appellant	Kanhaiya Lal
Respondent	State of Rajasthan and ors.
Appellant Advocate	Akil Simlote, Adv.
Respondent Advocate	J.M. Saxena, Dy. Govt. Adv.
Disposition	Petition allowed
Cases Referred	H.D. Singh v. Reserve Bank of India

Kanhaiya Lal Vs. State of Rajasthan and ors. - Court Judgment