DEVINDER SINGHversusMUNICIPAL COUNCIL, SANAUR

•                    [2011] 4 S.C.R. 867


                      DEVINDER SINGH                              A
                               v.
              MUNICIPAL COUNCIL, SANAUR
              (Civil Appeal No. 3190 of 2011)

                       APRIL 11, 2011
                                                                   B
    [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

     INDUSTRIAL DISPUTES ACT, 1947:

      ss. 2.(s}, 2(oo) and 25-F-'Workman' engaged on contract C
basis - Termination of services of workman without complying
 with the provisions of s. 25-F - Labour Court ordering
reinstatement without back wages - High Court setting aside
 reinstatement holding that the appointment was made without
 following recruitment rules and that it would not be in public
 interest to approve award of reinstatement after long lapse of D
 time - HELD: The source of employment, the method of
 recruitment, the terms and conditions of employment/contract
 of service, the quantum of wages/pay and the mode of
payment are not at all relevant for deciding whether or not a
 person is a workman within the meaning of s. 2(s) of the Act E
 - Further, the definition of workman also does not make any
 distinction between full time and part time employee or a
 person appointed on contract basis - Once the test of
 employment for hire or reward for doing the specified type of
 work is satisfied, the employee will fall within the definition of F
  'workman' - Delay in adjudication of dispute by Labour Court
 or the writ petition filed by employer cannot be made a ground
 to justify the gross illegalities committed by the employer in
'terminating the services of the workman - Delay!Laches.
                                                                    G
       s.25-F read with ss.2(s) and 2(oo) - HELD: Provisions
 contained in s. 25-F (a) and (b) are mandatory and
 termination of service of a workman which amounts to
 retrenchment uls. 2(oo) without complying with the mandates

                              867                                  H
   868     SUPREME COURT REPORTS             [2011] 4 S.C.R.
                                                                •
A of s.25-F would be null and votd - There was no material to
  show that the engagement of the workman was discontinued
  by relying upon the terms and conditions of the employment
  - Judgment of High Court set aside - Award of reinstatement
  passed by Labour Court restored with wages for the period
B between the date of award and date of reinstatement.
       The appellant was engaged by the respondent-
  Municipal Council for doing the work of clerical nature
  w.e.f.1.8.1994 at a consolidated salary of Rs. 1,000/-per
  month. His services were discontinued w.e.f.30.9.1996,
C without giving him any notice or compensation as
  required by s.25-F of the Industrial Disputes Act, 1947. On
  an Industrial Dispute being raised, the State Government
  referred the matter to the Labour Court, which passed an
  award for reinstatement of the workman without back
D wages. However, the High Court allowed the appeal of
  the employer holding that the Labour Court should not
  have ordered reinstatement of the appellant as his
  appointment was contrary to the recruitment rules and
  Articles 14 and 16 of the Constitution and it would not be
E in public interest to sustain the award of reinstatement
  after long lapse of time. The High Court, however,
  declared that the appellant would be entitled to wages in
  terms of s.17-8 of the Act. Aggrieved, the workman filed
  the appeal.
F
       Allowing the appeal, the Court
       HELD: 1.1 Section 2(s) of the Industrial Disputes Act,
  1947 contains an exhaustive definition of the term
  'workman'. The source of employment, the method of
G recruitment, the terms and conditions of employment/
  contract of service, the quantum of wages/pay and the
  mode of payment are not at all relevant for deciding
  whether or not a person is a workman within the meaning
  of s. 2(s) of the Act. The definition of workman also does
H not make any distinction between full time and part time
•   DEVINDER SINGH v. MUNICIPAL COUNCIL, SANAUR 869


    employee or a person appointed on contract basis. There        A
    is nothing in the plain language of s. 2(s) from which it
    can be inferred that only a person employed on regular
    basis or a person employed for doing whole time job is
    a workman and the one employed on temporary, part time
    or contract basis on fixed wages or as a casual employee       B
    or for doing duty for fixed hours is not a workman. [Para
    12 to 14] [880-E-H; 881-A-C]
         1.2 Whenever an employer challenges the
    maintainability of industrial dispute on the ground that the
    employee is not a workman within the meaning of s. 2(s)        C
    of the Act, what the Labour Court/Industrial Tribunal is
    required to consider is whether the person is employed
    in an industry for hire or reward for doing manual,
    unskilled, skilled, operational, technical or clerical work
    in an industry. Once the test of employment for hire or        D
    reward for doing the specified type of work is satisfied,
    the employee would fall within the definition of 'workman'.
    [Para 15] (881-D-E]
        Birdhichand Sharma v. First Civil Judge, Nagpur 1961 (3)   E
    SCR 161; Silver Jubilee Tailoring House v. Chief Inspector
    of Shops and Establishments 1974 (1) SCR 747 = 1974 (3)
    SCC 498, L. Roberl D'souza v. Executive Engineer (1982) 1
    sec 645, relied on.
        2.1 Definition of the term "retrenchment" in s.2(oo) of    F
    the Act is quite comprehensive. It covers every type of
    termination of the service of a workman by the employer
    for any reason whatsoever, otherwise than as a
    punishment inflicted by way of disciplinary action. The
    cases of voluntary retirement of the workman, retirement       G
    on reaching the age of superannuation, termination of
    service as a result of non-renewal of the contract of
    employment or of such contract being terminated under
    a stipulation contained therein or termination of the
                                                                   H
    870       SUPREME COURT REPORTS            [2011] 4 S.C.R.
                                                                 •
A service of a workman on the ground of continued ill
  health also do not fall within the ambit of retrenchment.
  [Para 10) [879-E-H]
         Punjab Land Development And Reclaimation
    Corporation Ltd., Chandigarh v. Presiding Officer Labour
8   Court, Chandigarh 1990 (3) SCR 111 = (1990) 3 SCC 682,
    State Bank of India v. N. Sundara Money 1976 (3) SCR 160 =
    (1976) 1 sec 822 - referred to.
      2.2. Section 25-F is couched in negative form. It
c imposes a restriction on the employer's right to retrench
  a workman. This Court has repeatedly held that the
  provisions contained in s. 25-F (a) and (b) are mandatory
  and termination of the service of a workman, which
  amounts to retrenchment within the meaning of s. 2(oo)
0 without giving one month's notice or pay in lieu thereof
  and retrenchment compensation, is null and void/illegal/
  inoperative. [Para 19 to 20) [882-D-E; G-H; 883-A]
       State of Bombay v. Hospital Mazdoor Sabha 1960 SCR
  866 =AIR 1960 SC 610, Bombay Union of Journalists v.
E State of Bombay 1964 SCR 22 =AIR 1964 SC 1617, State
  Bank of India v. N. Sundara Money (supra), Santosh Gupta
                                              =
  v. State Bank of Patiala 1980 (3) SCR 884 (1980) 3 SCC
  340, Mohan Lal v. Bharat Electronics Ltd. 1981 (3) SCR
  518     =
          (1981) 3 SCC 225, L. Robert D'Souza v. Southern
F Railway (1982) 1 SCC 645; Surendra Kumar Verma v.
  Central Government Industrial Tribunal-cum-Labour Court
  1981 (1) SCR 789 = (1980) 4 SCC 443, Gammon India Ltd.
  v. Niranjan Dass 1984 (1) SCR 959 = (1984) 1 SCC 509,
  Gurmail Singh v. State of Punjab 1990 (2) Suppl.
G SCR 367 = (1991) 1 SCC 189 and Pramod Jha v. State of
  Bihar 2003 (2) SCR 512 = (2003) 4 sec 619 - relied on
        2.3 In Anoop Sharma's case*, the Court considered
    the effect of violation of s.25-F, referred to various

H
•
DEVINDER SINGH v. MUNICIPAL COUNCIL, SANAUR 871

precedents on the subject and held that termination of       A
service of a workman without complying with the
mandatory provisions contained in s.25-F(a) and (b)
should ordinarily result in his reinstatement. [para 21)
(883-0)
     *Anoop Sharma vs. Executive Engineer, Public Health     8
Divison, Haryana (2010) 5 SCC 497 - relied on.

     3.1 A careful analysis of the impugned order reveals
that the High Court neither found any jurisdictional
infirmity in the award of the Labour Court nor did it come   c
to the conclusion that the same was vitiated by an error
of law apparent on the face of the record.
Notwithstanding this, the High Court set aside the
direction given by the Labour Court for reinstatement of
the appellant by assuming that his initial appointment/      0
engagement was contrary to law and that it would not be
in public interest to approve the award of reinstatement
after long lapse of time. The approach adopted by the
High Court in dealing with the award of the Labour Court
was ex facie erroneous and contrary to the law laid down     E
by this Court. (Para 22) (883-E-G]
     Syed Yakoob v. K.S. Radhakrishnan 1964 SCR 64 =
AIR (1964) SC 477, Swaran Singh v. State of Punjab (1976)
2 SCC 868 P. G. I. of Medical Education & Research,
Chandigarh v. Raj Kumar 2000 ( 4 ) Suppl. SCR 350       =F
(2001) 2 SCC 54, Surya Dev Rai v. Ram Chander Rai 2003
(2) Suppl. SCR 290     = (2003) 6 sec 675 and Shalini
Sh yam v. Rajendra Shankar Path 2010 (8 ) SCR 836       =
(2010) 8 sec 329, relied on.
     3.2. The reasons assigned by the High Court for         G
setting aside the award of reinstatement are legally
untenable. It is true that the engagement of the appellant
was not preceded by an advertisement and consideration
of the competing claims, but it deserves to be noticed,
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    872    SUPREME COURT REPORTS              [2011] 4 S.C.R.
                                                                •
A that the respondent had engaged the appellant in the
  back drop of the ban imposed by the State Government
  on the filling up of the vacant posts. The respondent had
  started a water supply scheme and for ensuring timely
  issue of the bills and collection of water charges, it
B needed the service of a clerk. However, on account of the
  restriction imposed by the State Government, regular
  recruitment was not possible. Therefore, resolution dated
  27.04.1995 was passed for engaging the appellant on
  contract basis. This exercise was repeated and in 1996
c and the appellant's term was extended for six months
  from 1.5.1996. However, his engagement was
  discontinued w.e.f. 30.9.1996 without giving any notice or
  pay in lieu thereof and compensation as per the
  requirement of clauses (a) and (b) of s. 25-F of the Act.
  Failure of the Director, Local Self Government, to convey
0
  his approval to the resolution of the respondent could not
  be made a ground for bringing an end to the engagement
  of the appellant and that too without complying with the
  mandate of s. 25-F(a) and (b). Further, the appellant could
  hardly be blamed for the delay, if any, in the adjudication
E of the dispute by the Labour Court or the writ petition
  filed by the respondent. The delay of four to five years in
  the adjudication of disputes by the Labour Court/
  Industrial Tribunal is a normal phenomena. If what the
  High Court has done is held to be justified, gross
F illegalities committed by the employer in terminating the
  services of workman will acquire legitimacy in majority of
  cases. Therefore, the approach adopted by the High
  Court in dealing with the appellant's case is disapproved.
  [Para 24 to 26] [886-C-E; 887-E-H; 888-A-D]
G
         4.1. The plea of the respondent that the action taken
    by it is covered bys. 2(oo)(bb) was clearly misconceived
    and was rightly not entertained by the Labour Court
    because no material was produced by the respondent to
H
•   DEVINDER SINGH v. MUNICIPAL COUNCIL, SANAUR 873


    show that the engagement of the appellant was                  A
    discontinued by relying upon the terms and conditions
    of the employment. [Para 27] (888-E-F]
        4.2. The impugned order is set aside and the award
    passed by the Labour Court for reinstatement of the
                                                                   8
    appellant is restored. If the respondent shall reinstate the
    appellant, the appellant shall also be entitled to wages for
    the period between the date of award a'nd the date of
    actual reinstatement. [Para 28] [888-F-G]
         Secy., State of Karnataka v. Umadevi (2006) 1 SCC 1;      C
    State of M.P. v. La/it Kumar Verma (2007) 1 SCC 575;
    Uttrancha/ Forest Development Corporation v M. C. Joshi
    (2007(2) SCC (L&S) 813; M.P. Administration v. Tribhuban
    (2007) 9 SCC 748; Mahboob Deepak v. Nagar Panchayat,
    Gajrau/a (2008) 1 SCC 575; Ghaziabad Development               D
    Authority v, Ashok Kumar (2008) 4 SCC 261; and Harjinder
    Singh v. Punjab .State Warehousing Corporation (2010) 3
    sec 192 - cited.
                         Case Law Reference:
                                                                   E
      (2006) 1 sec 1                cited       para 6
      (2001) 1 sec 575              cited       para 6
      2001(2) sec (L&S) 813         cited       para 6
      (2007) s sec 748              cited       para 6             F
      (2oos) 1 sec 575              cited       para 6
      (2ooa) 4 sec 261              cited       para 6
      (201 o) 3 sec 192             cited       para 7
                                                                   G
      (201 O) s sec 497             relied on   para 7
      1976 (3) SCR 160              referred to para 11
      1990 (3) SCR 111              referred to para 11
             I
      1961 (3)_SCR 161              relied on   para 16            H
    874       SUPREME COURT REPORTS                [2011] 4 S.C.R.•
A    1974 ( 1 ) SCR 747               relied on    para 17
     (1982) 1 sec 645                 relied on    para 18
     1960 SCR 866                     relied on    para 20
     1964 SCR 22                      relied on    para 20
B
     1980 ( 3) SCR 884                relied on    para 20
      1981 ( 3 ) SCR 518              relied on    para 20
      1981 ( 1 ) SCR 789              relied on    para 20
c     1984 ( 1 ) SCR 959              relied on    para 20
      1990 ( 2 ) Suppl. SCR 367       relied on    para 20
      2003 ( 2) SCR 512               relied on    para 20
      1964 SCR 64                     relied on    para 22
D
      (1976) 2 sec 868                relied on    para 22
      2000 ( 4 ) Suppl. SCR 350       relied on    para 22
      2003 (2 ) Suppl. SCR 290 relied on           para 22
E
      2010 (8 ) SCR 836               relied on    para 22
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3190 of 2011.

       From the Judgment & Order dated 19.11.2008 of the High
F Court of Punjab & Haryana at Chandigarh in C.W.P. No. 11111
  of 2006.
        Roshan Lal Batta, Shikha Roy Pabbi, Ajit Kumar, S.K.
    Sabharwal for the Appellant.
G         Sanjay Jain for the Respondent.
          The Judgment of the Court was delivered by
          G.S. SINGHVI, J. 1. Leave granted.

H         2. This appeal is directed against the order p!lsJd by the
•   DEVINDER SINGH v. MUNICIPAL COUNCIL, SANAUR 875
                  [G.S. SINGHVI, J.]
    Division Bench of the Punjab and Haryana High Court in the            A
    writ petition filed by the respondent whereby the award passed
    by Labour Court, Patiala (for short, "the Labour Court") for
    reinstatement of the appellant was set aside and it was declared
    that he shall be entitled to wages in terms of Section 17-B of
    the Industrial Disputes Act, 1947 (for short, "the Act").             B

         3. The appellant was engaged by the respondent with
    effect from 1.8.1994 for doing the work of clerical nature. He
    was paid consolidated salary of Rs.1,000/- per month. He
    continued in the service of the respondent till 29.09.1996. His
    service was discontinued with effect from 30.9.1996 without           C
    giving him notice and compensation as per the requirement of
    Section 25-F of the Act.
         4. The appellant challenged the termination of his service
    by raising an industrial dispute, which was referred by the State     0
    Government to the Labour Court. In the statement of claim filed
    by him, the appellant pleaded that he had continuously worked
    in the employment of the respondent from 1.8.1994 to
    29.9.1996; that his service was terminated without holding any
    enquiry and without giving him notice and compensation and            E
    that persons junior to him were retained in service. In the written
    statement filed on behalf of the respondent, it was pleaded that
    the appellant was engaged on contract basis and his service
    was terminated because the Director, Local Self Government
    did not give approval to the resolution passed for his
    employment. According to the respondent, the resolution               F
    passed for engaging the appellant was sent to the Deputy
    Director for approval, but the same was returned with the
    remark that the approval may be obtained from the Director,
    Local Self Government. Thereafter, the resolution was sent to
    the Director, Local Self Government but no response was               G
    received from the concerned authority and, therefore, it became
    necessary to discontinue the service of the appellant.
         5. After considering the pleadings of the parties and the
    evidence produced by them, the Labour Court passed an award           H
A
    876     SUPREME COURT REPORTS                  [2011] 4 S.C . R.


  for reinstatement of the appellant without back wages. Tre
                                                                        •
  Labour Court held that the appellant had worked for more than
  240 days in a calendar year preceding the termination of his
  service and that his service was terminated with effect from
  30.9.1996 without complying with the mandatory provisions
B contained in Section 25F of the Act. The Labour Court rejected
  the plea that the termination of the appellant's service is covered
  by Section 2(oo)(bb) of the Act by observing that no evidence
  was produced by the respondent to prove that it was a case of
  termination of service in accordance with the terms of the
c contract of employment.

       6. The Division Bench of the High Court entertained and
  allowed the writ petition filed by the respondent by relying upon
  the judgments of this Court in Secy., State of Karnataka v.
  Umadevi (2006) 1 SCC 1; State of MP. v. La/it Kumar Verma
D (2007) 1 SCC 575; Uttranchal Forest Development
  Corporation v M. C. Joshi (2007(2) SCC (L&S) 813; M.P.
  Administration v. Tribhuban (2007) 9 SCC 748; Mahboob
  Deepak v. Nagar Panchayat, Gajraula (2008) 1 SCC 575 and
  Ghaziabad Development Authority v. Ashok Kumar (2008) 4
E SCC 261. The Division Bench was of the view that the Labour
  Court should not have ordered reinstatement of the appellant
  because his appointment was contrary to the recruitment rules
  and Articles 14 and 16 of the Constitution and it would not be
  in public interest to sustain the award of reinstatement after long
F lapse of time. Simultaneously, the Division Bench declared that
  the appellant shall be entitled to wages in terms of Section 17-
  B of the Act.
       7. Shri R.L.Batta, learned senior counsel for the appellant
  argued that the impugned order is liable to be set aside
G because while interfering with the award of the Labour Court,
  the Division Bench of the High Court ignored the judicially
  recognised parameters for the exercise of power under Article
  226 of the Constitution. Learned senior counsel further argued
  that the High Court was not justified in upsetting the award of
H reinstatement simply because there was some time gap
•    DEVINDER SINGH v. MUNICIPAL COUNCIL, SANAUR 877
                   [G.S. SINGHVI, J.]
    between reference of the dispute by the State Government and       A
.., adjudication thereof by the Labour Court. Learned senior
    counsel then relied upon the judgments of this Court in
    Harjinder Singh v. Punjab State Warehousing Corporation
    (2010) 3 SCC 192 and Anoop Sharma v. Public Health
    Division, Haryana (2010) 5 SCC 497 and argued that the             B
    Labour Court did not commit any illegality by ordering
    reinstatement of the appellant because his service was
    terminated in clear violation of Sections 25~F and 25-G of the
    Act.                    .

            8. Shri Sanjay Jain, learned counsel for the respondent    C
      argued that the High Court did not commit any error by setting
    . aside the award of reinstatement because initial appointment
      of the appellant was not sanctioned by law. Learned counsel
      submitted that the action taken by the respondent was legally
      correct and justified because the Director, Local Self           D
      Government did not approve the resolution passed by the
      respondent for engaging the appellant. Shri Jain further
      submitted that service of the appellant was terminated in
      accordance with the conditions stipulated in the contract of
      employment and, as such, it cannot be termed as retrenchment     E
      'Nithin the meaning of Section 2(oo) of the Act.
          9. We have considered the respective submissions and
     carefully perused the record. Sections 2(oo}, 2(s) and 25F of
     the Act which have bearing on the decision .of this appeal read
     as under:                                                         F
         "2. (oo) "retrenchment" means the t~rmination by the
         employer of the service of a workman for any .reason
         whatsoever, otherwise than as a punishment inflicted by
         way of disciplinary action, but does not include -
                                                                       G
          (a)    voluntary retirement of the workman; or
           (b)   retirement of the workman on reaching the age of
                 superannuation if the contract of employment
                 between the employer and the wprkman concerned
                 contains a stipulation in that behalf; or             H
                                                    l


                                                 '.
                                               ·:.~· :+
                                                 '.
    878          SUPREME COURT REPORTS               [2011] 4 S.C.R.
                                                                          •
A          (bb) termination of the service of the workman as a result
                of the non-renewal of the contract of employment
                between the employer and the workman concerned
                on its expiry or of such contract being terminated
                under a stipulation in that behalf contained therein;
B               or
           (c}    termination of the service of a workman on the
                  ground of continued ill-health;
          2 (s) "workman" means any person (including an
          apprentice) employed in any industry to do any manual,
c         unskilled, skilled, technical, operational, clerical or
          supervisory work for hire or reward, whether the terms of
          employment be express or implied, and for the purposes
          of any proceeding under this Act in relation to an industrial
          dispute, includes any such person who has been
D         dismissed, discharged or retrenched in connection with,
          or as a consequence of, that dispute, or whose dismissal,
          discharge or retrenchment has led to that dispute, but does
          not include any such person-

E         (i) who is subject to the Air Force Act, 1950 (45 of 1950),
          or the Army Act, 1950 (46of1950), or the Navy Act, 1957
          (62 of 1957); or
          (ii) who is employed in the police service or as an officer
          or other employee of a prison; or
F         (iii) who is employed mainly in a managerial or
          administrative capacity; or who, being employed in a
          supervisory capacity, draws wages exceeding ten
          thousand rupees per mensem or exercises, either by the
          nature of the duties attached to the office or by reason of
G         the powers vested in him, functions mainly of a managerial
          nature.
          25F. Conditions precedent to retrenchment of
          worklnen.-No workman employed in any industry who
          has been in continuous service for not less than one year
H
•   DEVINDER SINGH v. MUNICIPAL COUNCIL, SANAUR 879
                  [G.S. SINGHVI, J.]
        under an employer shall be retrenched by that employer            A
        until-
        (a) the workman has been given one month's notice in
        writing indicating the reasons for retrenchment and the
        period of notice has expired, or the workman has been
        paid in lieu of such notice, wages for the period of the          8
        notice;
        (b) the workman has been paid, at the time of
        retrenchment, compensation which shall be equivalent to
        fifteen days' average pay for every completed year of             c
        continuous service or any part thereof in excess of six
        months; and
        (c) notice in the prescribed manner is served on the
        appropriate Government or such authority as may be
        specified by the appropriate Government by notification in        D
        the Official Gazette."
          10. The definition of the term "retrenchment" is quite
    comprehensive. It covers every type of termination of the service
    of a workman by the employer for any reason whatsoever,
    otherwise than as a punishment inflicted by way of disciplinary       E
    action. The cases of voluntary retirement of the workman,
    retirement on reaching the age of superannuation, termination
    of service as a result of non-renewal of the contract of
    employment or of such contract being terminated under a
    stipulation contained therein or termination of the service of a      F
    workman on the ground of continued ill health also do not fall
    within the ambit of retrenchment.
        11. In State Bank of India v. N. Sundara Money (1976) 1
    SCC 822, a three Judge Bench of this Court analysed Section G
    2(oo) and held:
         "...... Termination ... for any reason whatsoever' are the key
         words. Whatever the reason, every termination· spells
         retrenchment. So the sole question is, has the employee's
         service been terminated? Verbal apparel apart, the               H
    880      SUPREME COURT REPORTS                 [2011) 4 S.C.R.     •
A         substance is decisive. A termination takes place where a
          term expires either by the active step otthe master or the
          running out of the stipulated term. To protect the weak
          against the strong this policy of comprehensive definition
          has been effectuated. Termination embraces not merely the
B         act of termination by the employer, but the fact of
          termination howsoever produced. Maybe, the present may
          be a hard case, but we can visualise abuses by
          employers, by suitable verbal devices, circumventing the
          armour of Section 25-F and Section 2(00). Without
c         speculating on possibilities, we may agree that
          "retrenchment" is no longer terra incognita but area
          covered by an expansive definition. It means "to end,
          conclude, cease" ...................."
         The ratio of the aforementioned judgement was approved
D   by the Constitution Bench in Punjab Land Development And
    Recfaimation Corporation Ltd., Chandigarh v. Presiding
    Officer Labour Court, Chandigarh (1990) 3 SCC 682.
        12. Section 2(s) contains an exhaustive definition of the
  term 'workman'. The definition takes within its ambit any person
E including an apprentice employed in any industry to do any
  manual, unskilled, skilled, technical, operational, clerical or
  supervisory work for hire or reward and it is immaterial that the
  terms of employment are not reduced into writing. The definition
  also includes a person, who has been dismissed, discharged
F or retrenched in connection with an industrial dispute or as a
  consequence of such dispute or whose dismissal, discharge
  or retrenchment has led to that dispute. The last segment of the
  definition specifies certain exclusions. A person to whom the
  Air Force Act, 1950, or the Army Act, 1950, or the Navy Act,
G 1957, is applicable or who is employed in the police service
  as an officer or other employee of a prison or who is employed
  mainly in managerial or administrative capacity or who is .
  employed in a supervisory capacity and is drawing specified
  wages per mensem or exercises mainly managerial functions
H does not fall within the definition of the term 'workman'.
•   DEVINDER SINGH v. MUNICIPAL COUNCIL, SANAUR 881
                  [G.S. SINGHVI, J.]
         13. The source of employment, the method of recruitment,    A
    the terms and conditions of employmenUcontract of service, the
    quantum of wages/pay and the mode of payment are not at all
    relevant for deciding whether or not a person is a workman
    within the meaning of Section 2(s) of the Act.
         14. It is apposite to observe that the definition of workman B
    also does not make any distinction between full time and part
    time employee or a person appointed on contract basis. There
    is nothing in the plain language of Section 2(s) from which it
    can be inferred that only a person employed on regular basis
    or a person employed for doing whole time job is a workman C
    and the one employed on temporary, part time or contract basis
    on fixed wages or as a casual employee or for doing duty for
    fixed hours is not a Workman.
          15. Whenever an employer challenges the maintainability
    of industrial dispute on the ground that the employee is not a D
    workman within the meaning of Section 2(s) of the Act, what
    the Labour Court/Industrial Tribunal is required to consider is
    whether the person is employed in an industry for hire or reward
    for doing manual, unskilled, skilled, operational, technical or
    clerical work in an industry. Once the test of employment for hire E
    or reward for doing the specified type of work is satisfied, the
    employee would fall within the definition of 'workman'.
          16. In Birdhichand Sharma v. First Civil Judge,Nagpur
    1961 (3) SCR 161 this Court considered the question whether F
    bidi rollers were workmen within the meaning of the term used
    in the Factories Act, 1948. The factual matrix of the case
    reveals that the workers who used to roll the bidis had to work
    at the factory and were not at liberty to work at their houses.
    Their attendance was noted in the factory and they had to work
    within the factory, though there was freedom of doing work for G
    particular hours. They could be removed from service on the
    ground of absence for eight days. The wages were paid on
    piece-rate basis. After considering these facts, the Court held
    that the bidi rollers were workmen. The Court observed that
    when the operation was of a simple nature and did not require H
                 ..


    882      SUPREME COURT REPORTS                [2011] 4 S.C.R.     •
A   supervision, the control could be exercised at the end of the
    day by the method of rejecting bidis which did not meet the
    required standard and such supervision was sufficient to
    establish the employer employee relationship.
       17. In Silver Jubilee Tailoring House v. Chief Inspector
B of Shops and Establishments 1974 (3) SCC 498 the three
  Judge ~ench held that the tailors employed in a tailoring shop,
  who were paid according to their skill and work and the quality
  of whose work was regularly checked were employees covered
  by the Andhra Pradesh (Tilengana Area) Shops and
C Establishments Act, 1951.
          18. In L. Robert D'souza v. Executive Engineer (1982) 1
    sec 645 the Court held that even a daily rated worker would
    be entitled to protection of Section 25-F of the Act if he had
    continuously worked for a period of one year or more.
0
        19. Section 25 couched in negative form. It imposes a
  restriction on the employer's right to retrench a workman and
  lays down that no workman employed in any industry who has
  been in continuous service for not less then one year under an
E employer shall be retrenched until he has been given one
  month's notice in writing indicating the reasons for retrenchment
  and the period of notice has expired or he has been paid
  wages for the period of notice and he has also been paid, at
  the time of retrenchment, compensation equivalent to fifteen
F days' average pay for every completed year of continuous
  service or any part thereof in excess of six months and notice
  in the prescribed manner has been served upon the
  appropriate Government or the authority as may be specified
  by the appropriate Government by notification in the Official
  Gazette.
G
        20. This Court has repeatedly held that the provisions
  contained in Section 25F (a) and (b) are mandatory and
  termination of the service of a workman, which amounts to
   retrenchment within the meaning of Section 2(oo) without giving
H one month's notice or pay in lieu thereof and retrenchment
•   DEVINDER SINGH v. MUNICIPAL COUNCIL, SANAUR 883
                  [G.S. SINGHVI, J.]

compensation is null and void/illegal/inoperative-State of A
Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610,
Bombay Union of Journalists v. State of Bombay AIR 1964
SC 1617, State Bank of India v. N. Sundara Money (supra),
Santosh Gupta v. State Bank of Patiala (1980) 3 SCC 340,
Mohan Lal v. Bharat Electronics Ltd.(1981) 3 SCC 225, L. B
Robert D'Souza v. Southern Railway (supra), Surendra Kumar
Verma v. Central Government Industrial Tribunal-cum-Labour
Court (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan Dass
(1984) 1 SCC 509, Gurmail Singh v. State of Punjab (1991)
1 SCC 189 and Pramod Jha v. State of Bihar (2003) 4 SCC C
619.
      21. In Anoop Sharma v. Executive Engineer, Public
 Health Division, Haryana (supra), the Court considered the
 effect of violation of Section 25F, referred to various precedents
 on the subject and held the termination of service of a workman      D
'without complying with the mandatory provisions contained in
 Section 25-F (a) and (b) should ordinarily result in his
 reinstatement.
       22. We may now advert to the impugned order. A careful
 analysis thereof reveals that the High Court neither found any E
 jurisdictional infirmity in the award of the Labour Court nor it
 came to the conclusion that the same was vitiated by an error
 of law apparent on the face of the record. Notwithstanding this,
 the High Court set aside the direction given by the Labour Court
 for reinstatement of the appellant by assuming that his initial F
 appointmenUengagement was contrary to law and that it would
 not be in public interest to approve the award of reinstatement
 after long lapse of time. In our view, the approach adopted by
 the High Court in dealing with the award of the Labour Court
 was ex facie erroneous and contrary to the law laid down in G
 Syed Yakoob v. K.S. Radhakrishnan AIR (1964) SC 477,
 Swaran Singh v. State of Punjab (1976) 2 SC.C 868 P.G.I. of
 Medical Education & Research, Chandigarh v. Raj Kumar
•(2001) 2 SCC 54, Surya Dev Rai v. Ram Chander Rai (2003)
 6SCC 675 and Shalini Shyam v. Rajendra Shankar Path H
    884       SUPREME COURT REPORTS                    [2011] 4 S.C.R.
                                                                         •
A (201 O) 8 sec 329.
        23. In Syed Yakoob v. K.S. Radhakrishnan (supra), this
    Court identified the limitations of certiorari jurisdiction of the
    High Court under Article 226 of the Constitution in the following
    words:
B
          "The question about the limits of the jurisdiction of High
          Courts in issuing a writ of certiorari under Article 226 has
          been frequently considered by this Court and the true legal
          position in that behalf is no longer in doubt. A writ of
          certiorari can be issued for correcting errors of jurisdiction
c         committed by inferior courts or tribunals: these are cases
          where orders are passed by inferior courts or tribunals
          without jurisdiction, or is in excess of it, or as a result of
          failure to exercise jurisdiction. A writ can similarly be
          issued where in exercise of jurisdiction conferred on it, the
D         court or tribunal acts illegally or improperly, as for instance,
          it decides a question without giving an opportunity to be.
          heard to the party affected by the order, or where the
          procedure adopted in dealing with the dispute is opposed
          to principles of natural justice. There is, however, no doubt
E         that the jurisdiction to issue a writ of certiorari is a
          supervisory jurisdiction and the court exercising it is not
           entitled to a'ct as an appellate court. This limitation
           necessarily means that findings of fact reached by the
           inferior court or tribunal as result of the appreciation of
F          evidence cannot be reopened or questioned in writ
           proceedings. An error of law which is apparent on the face
           of the record can be corrected by a writ, but not an error
           of fact, however grave it may appear to be. In regard to a
           finding of fact recorded by the tribunal, a writ of certiorari
G          can be issued if it is shown that in recording the said
           finding, the tribunal had erroneously refused to admit
           admissible and material evidence, or had erroneously
           admitted inadmissible evidence which has influenced the
           impugned finding. Similarly, if a finding of fact is based on
H          no evidence, that would be regarded as an error of law
•   DEVINDER SINGH v. MUNICIPAL COUNCIL, SANAUR 885
                  [G.S. SINGHVI, J.]
      which can be corrected by a writ of certiorari. In dealing          A
      with this category of cases, however, we must always bear
      in mind that a finding of fact recorded by the tribunal
      cannot be challenged in proceedings for a writ of certiorari
      on the ground that the relevant and material evidence
      adduced before the tribunal was insufficient or inadequate          s
      to sustain the impugned finding. The adequacy or
      sufficiency of evidence led on a point and the inference of
      fact to be drawn from the said finding are within the
      exclusive jurisdiction of the tribunal, and the said points
      cannot be agitated before a writ court. It is within these          c
      limits that the jurisdiction conferred on the High Courts
      under Article 226 to issue a writ of certiorar.i can be
      legitimately exercised."
       In the second judgment'"" Swaran Singh v. State of Punjab
  (supra), thts Cc:rurt reiterated the limitations of certiorari          D
·jurisdiction indicated in Syed Yakoob v. Radhakrishnan
  (supra) and observed:
      "In regard to a finding of fact recorded by an inferior tribunal,
      a writ of certiorari can be issued only if in recording such
      a finding, the tribunal has acted on evidence which is              E
      legally inadmissible, or has refused to admit admissible
      evidence, or if the finding is not supported by any evidence
      at all, because in such cases the error amounts to an error
      of law. The writ jurisdiction extends only to cases where
      orders are passed by inferior courts or tribunals in excess         F
      of their jurisdiction or as a result of their refusal to exercise
      jurisdiction vested in them or they act illegally or improperly
      in the exercise of their jurisdiction causing grave
      miscarriage of justice."
      In Surya Dev Rai v. Ram Chander Rai (supra), the two-               G
 Judge Bench noticed the distinction between the scope of
 Articles 226 and 227 of the Constitution and culled out several
 propositions including the following:
      "(3) Certiorari, under Article 226 of the Constitution, is          H
    886       SUPREME COURT REPORTS                       [2011] 4 S.C.R.       •
A         issued for correcting gross errors of jurisdiction i.e. when
          a subordinate court is found to have acted (i) without
          jurisdiction-by assuming jurisdiction where there exists
          none, or (ii) in excess of its jurisdiction-by overstepping
          or crossing the limits of jurisdiction, or (iii) acting in flagrant
B         disregard of law or the rules of procedure or acting in
          violation of principles of natural justice where there is no
          procedure specified, and thereby occasioning failure of
          justice."
       24. We are also convinced that the reasons assigned by
C the High Court for setting aside the award of reinstatement are
  legally untenable. In the first, it deserves to be noticed that the
  respondent had engaged the appellant in the back drop of the
  ban imposed by the State Government on the filling up of the
  vacant posts. The respondent had started a water supply
D scheme and for ensuring timely issue of the bills and collection
  of water charges, it needed the service of a clerk. However,
  on account of the restriction imposed by the State Government,
  regular recruitment was not possible. Therefore, resolution
  dated 27.04.1995 was passed for engaging the appellant on
E contract basis. The relevant portions of the resolution are
  extracted below:
          "MUNICIPAL COUNCIL,SANAUR,(PATIALA).
          COPY OF RESOLUTION N0.30 DATED 27.04.1995
F         It has been informed by the office to the house that one
          vacancy of Clerk in the office of Municipal Council, Sanaur
          is being vacant to the water supply branch. Due to ban
          imposed by the Punjab Government vacancy cannot be
          filed in at present. Municipal Council is operating two
G         tubewells and is directly supplying water to the- general
          public. At present Municipal Council is operating two
          tubewells and is directly supplying water to the general
          public. Municipal Council has given about 1500 water
          connections. In respect of issuance of water bills and their
H         respective deposit there is need of one Clerk. This
•   DEVINDER SINGH v. MUNICIPAL COUNCIL, SANAUR 887
                  [G.S. SINGHVI, J.]
         vacancy can be filled in after receiving sanction from the       A
         government. Therefore at present for the working of the
         office business as per the instruction of the Government,
         sanction may kindly be accorded for employing a person
         as Clerk on contract basis on the consolidated salary of
         Rs. One thousand per month. This matter was discussed            B
         seriously by the house because to provide water to the
         general public in the summer season is very essential.
         Tht:refore, to run smoothly - the work of water supplying
         Shri Devinder Singh son of .Shjri Hazura Singh of Mohalla
         kanian, Sanaur is hereby engaged for a period of six             c
         months on contract basis on a consolid~ted salary of ~s.
         One thousand with effect from 02.05.1995. Resolution was
         unanimously passed.
                                                       Sd/- President
                                           Minicipal Council, Sanaur      D
                                                               Patiala
          25. In furtherance of the aforesaid resolution, the
    respondent engaged the appellant, who was already in its
    employment, as a Clerk for a period of six months on contract         E
    basis on consolidated salary of Rs. 1,000/- per month. At the
    end of six months, the respondent passed another resolution
    dated 30.11.1995 and again employed the appellant for a
    period of six months from 1.11.1995 to 20.4.1996. This exercise
    was repeated in 1996 and the appellant's term was extended            F
    for six months from 1.5.199.6. However, his engagement was
    discontinued w.e.f. 30.9.1996 without giving any notice or pay
    in lieu thereof and compensation as per the requirement of
    clauses (a) and (b) of Section 25-F of the Act. It is true that the
    engagement of the appellant was not preceded by an                    G
    advertisement and consideration of the competing claims of
    other eligible persons but that exercise could:not be undertaken
    by the respondent because of the ban imposed by the State
    Government. It is surprising that the Division Bench of the High
    Court did not notice this important facet of the employment of        H


                                                ''
    888     SUPREME COURT REPORTS                   [2011] 4 S.C.R.

A the appellant and decided the writ petition by assuming that his
  appointment/engagement was contrary to the recruitment rules
  and Articles 14 and 16 of the Constitution. We may also add
  that failure of the Director, Local Self Government, Punjab to
  convey his approval to the resolution of the respondent could
B not be made a ground for bringing an end to the engagement
  of the appellant and that too without complying with the
  mandate of Section 25-F(a) and (b).
       26. The other reason given by the High Court is equally
  untenable. The appellant could hardly be blamed for the delay,
C if any, in the adjudication of the dispute by the Labour Court or
  the writ petition filed by the respondent. The delay of four to five
  years in the adjudication of disputes by the Labour Court/
  Industrial Tribunal is a normal phenomena. If what the High
  Court has done is held to be justified, gross illegalities
D committed by the employer in terminating the services of
  workman will acquire legitimacy in majority of cases. Therefore,
  we have no hesitation to disapprove the approach adopted by
  the High Court in dealing with the appellant's case.
       27. The plea of the respondent that the action taken by it
E is covered by Section 2(oo)(bb) was clearly misconceived and
  was rightly not entertained by the Labour Court because no
  material was produced by the respondent to show that the
  engagement of the appellant was discontinued by relying upon
  the terms and conditions of the employment.
F
       28. In the result, the appeal is allowed. The impugned ord1:ir
  is set aside and the award passed by the Labour Court for
  reinstatement of the appellant is restored. If the respondent shall
  reinstate the appellant within a period of four weeks from today,
G the appellant shall also be entitled to wages for the period
  between the date of award and the date of actual reinstatement.
  The respondent shall pay the arrears to the appellant within a
  period of three months from the date of receipt/production of
  the copy of this order.
H R.P.                                              Appeal allowed.