We have a part-time employee working as a gardener for a few hours to look after the small garden in our establishment. Since he was very irregular in his attendance, we have terminated his part-time employment. Now he has raised in industrial dispute which has been referred to the Labour court for adjudication. I am of the opinion that a part-time employee is not a `workman' under Industrial Disputes Act and should not have been referred but rejected. We will like to know your views under these columns? Please clarify.
-- Pardeep Shrivastava, Noida

A part-time employee is a `workman' as defined under the Industrial disputes Act as held by the Rajasthan high court.

1 The Punjab & Haryana high court has also held that a part-time employee will be a workman.

2 It is pertinent to refer one case directly applicable to your problem. The facts of the case were that the respondent was appointed as a gardener to look afterthe garden of the petitioner Corporation for two to three hours every day against a lump sum monthly payment of Rs.100/-p.m. from august, 1985 till 1988 when his services were discontinued, without observing provisions of section 25-F of the Industrial Disputes Act. The management of the corporation contended that the respondent was only a part-time employee and, therefore, not a `workman' within the meaning of the Act. It has been held by the Rajasthan High court that the essential condition of a person being a workman within a term of definition given in the Industrial Disputes Act is that he should be `employed' to do the work in the industry of his employer and that there should be the relationship between the employer and him as between master and servant. There is, thus no room to think that a casual workman does not come within the scope of the definition of `workman'. If relationship exists, it does not matter whether the employment is part-time or casual or part-time worker is a regular worker. Inthis case, the respondent has been engaged as a mali to look after the garden of the Corporation for two to three hours every day on the lump sum monthly payment of Rs.100/- Obviously, the relationship between him and the appellant is as between servant and master. The management filed Special Leave petition in the Supreme Court against the judgment of the High court but it was rejected in limini.

1. Yashwant Singh Yadav vs. State of Rajasthan & Others, 1990 LLr 96 (Raj.HC).

2. Shimla Devi vs. Presiding Officer & Ors., 1997 LLR 476 (P&H HC).

3. Managing Director, Rajasthan Small Scale Industries Corporation & Anr. vs. Fally Ram, 1996 LLR 645 (Raj. HC).

Whether any obstruction in employer's business is justified on the part of workers who are on strike?
-- N.K. Cornelus, Chennai

During strike, the striking workers can neither compel the willing workers to join the strike nor can they obstruct the work being carried on by the employer with the aid of either the willing workers or some otherworkers freshly recruited. The strikers are, no doubt, entitled to peaceful picketing during the strike, but they cannot participate in acts of any sort, or resort to disorderly conduct, with a view to put the management to harassment or loss in the business. Where the workmen deliberately caused obstruction to supervisory staff, it has been held that such a dereliction cannot be condoned and the refusal of employment to such workmen must be held to be justified.1 The Madras High Court also held that the striking employees have no right to prevent or obstruct other workers and customers from having ingress or egress out of the factory premises. Also they have no right to cause obstruction in the movement of the goods.2 The Kerala high court has also held that the workers have a right to resort to strike but they should not obstruct the non striking workers.

1. Peco Engg. & Mfg. Workers vs. Their Workmen, 1957-58 XII FJR 412 (IT).

2. Audeco India Ltd. vs. Audeco India Employees Union & Others, 1990 LLr 29(Mad. HC).

3. TCM Ltd. vs. district Collector & Ors., 1998 LLr 302 (Ker. HC).

Can a charge-sheet be substitute of a domestic enquiry?
-- V.K. Agnihotri, Kanpur

No. A charge-sheet as issued to a workman cannot be a substitute for an exparte enquiry. Even when a charge-sheeted workman fails to submit his explanation to the charge-sheet or the submission of a reply which files off at tangent to the charges levelled against him and thus for all practical purposes tantamounts to a `no contest' would not be sufficient or adequate proof of the guilt of the workman. In one case, a workman was suspended and charge sheeted. In reply, the workman sought the inspection of certain documents. The employer directed the branch manager for compliance with a copy to the workman by registered post. The workman, however, managed to avoid the service thereof and the notice requiring explanation of the workman was published in a weekly Hindi newspaper but again there was no response from the workman. The employer,the District Administrative Committee, passed a resolution to the effect that the workman has failed to avail the opportunity afforded to him to contest the charge-sheet and rebut the charges hence he should be dismissed from service. The high court while holding that charge-sheet cannot be a substitute of an enquiry reduced the rigour of its judgment in holding that it has all be opened to the employer to proceed further in respect of disciplinary proceedings from the stage where the case was before the said resolution was passed.

Sri Ram Verma vs. dist. Asstt. Registrar & Ors., 1987 (54) FLR 715.

Ours is a large scale industrial establishment and duly registered under the Factories Act. We have been working for six day a week but with liberalisation and globalisation, we are facing tough competition from internal as well as external competitors. We have decided to boost our production to work seven day in a week meaning thereby continuously or round the clock.
Our employees being aware of themarket trend and compelling circumstances are also cooperative and are ready to work provided they will get one day off after working for six days in a week in a stagger manner. We have made enquiries from the Inspector of Factories of our area who has quoted Section 52 of the Factories Act and has been of the opinion that such working for 7 days will not be permissible. Our problem is that unless we sutch over to our working for seven day week, we apprehend that our loss will multiply and we might fail in our struggle for survival. Is there any way to work continuously for seven days in a week without violating the provisions of the Factories Act?
-- Krishan Varma, Ahmedabad

At the very out-set it is made clear that under the Factories Act or the Rules the `continuing process' has not defined and as such it can be safely construed that every type of provision can be of continuous in nature. Also the sum and substance of Section 52 of the Factories Act is that after six day working, the worker mustbe given one weekly holiday and in case the weekly holiday is to be substituted, the employer is required to display a notice in the factory and to intimate and deliver it the office of the Inspector not later than three days before the said day or the holiday to be cancelled whichever is earlier.

Thus, the provisions of Section 52 of the Factories Act also provide and even permit substitution of weekly holiday and as such it should not be construed that Sunday should always be observed as weekly holiday whereas the normal weekly holiday for other workers such as those working in the office will be Sunday. Also section 2(f)defining `weekly holiday' means that the week begin at mid-night on Saturday night but at the same time it also provides `all such other nights' as may be approved in writing for a particular area by the Chief Inspector of the Factories. Thus, there is no bar or prohibition in working for all the seven days in a factory more particularly when the term `continuous process' has not beendefined i the Act.

Since your workers will not have any objection and also being a large establishment, you must be having certified Standing Orders and such Standing Orders always provide shift working and as such there should not be any problem. Also the workers who are ageeable be asked to execute a settlement so that there should not be any violation of Section 9-A of the Industrial disputes Act. It will, however, be imperative to intimate the area inspector of the Factories three days in advance with the names, designation, date and day of weekly holiday. Such notice should also be displayed on the notice board of the factory.

There is so much talk about different types of wages, subsistence wage, minimum wage, fair wage and living wage. Can you explain these words? Also what are broad principles for wage fixation?
-- Ram K. Kulkarni, Mumbai

It can be said that they are like a ladder, going up from lowest (subsistence wage) to the top rung and are explained below:

SubsistenceWage: Meets only bare physical needs of worker and his family.

Minimum Wage: Provides not only for bare physical needs but also for preservation of efficiency of worker plus some measure or education, health and other things.

This is the legal minimum wage of the Minimum Wage Act.

Fair wage : This is an adjustable step, moves up according to the capacity of the industry to pay, and the prevailing rates of wages in the area or industry.

Living Wage : Maintains worker's health and decency, a measure of comfort and some insurance against the more important misfortunes of life. The Supreme Court has held the following principles for wage fixation :

(a) There is minimum wage, which in any event must be paid, irrespective of the extent of profits, the financial condition of establishment or the availability of workmen at lower wages.

(b) The wages must be fair, i.e. sufficiently high to provide a standard family with food, shelter, clothing, medical care and education ofchildren appropriate to the workmen.

(c) A fair wage lies between minimum wage and the living wage which is the goal.

(d) Wages must be paid on an industry-wise and region basis having due regard to the financial capacity of the unit.

The Bombay high court has held that while fixing wages, a broad and overall view of the financial position of the employer must be taken into account.

1. Express Newspapers (P) Ltd. vs. Union of India, 1961 LLJ 339 (SC); AIR 1958 SC 678; (1958-59) 14 FJR 211; 1958 SCJ 1113; 1958 SCA 952.

2. Bombay Mothers & Children Society vs. General Labour Union (Regd.) 1991 Lab.IC 1653.