Hari Swarup, J. - (1.) THIS appeal has been filed against the judgment of the learned single Judge allowing the writ petition against an award of the Labour Court.
(2.) A dispute had arisen with respect to the punishment meted out to Ram Het, Appellant, by the employer. The Labour Court held that the domestic enquiry conducted by the employer was unfair and entered into the merits of the charges framed by the employer against the workman. Ram Het was employed to perform domestic duties at the residence of the Chief Engineer of the Ganesh Flour Mills Co. Ltd. The first charge against him was that he absented from duty on Sundays' falling in January and February 1968. The other two charges were in respect of non -performance of the duties during the course of his employment. The Labour Court held that the second and third charges were, besides being vague, not proved. In respect of these two charges the Labour Court had taken the view that as warning had been given by the employer in respect of the latches, the charges must be deemed to have been condoned and could not therefore form the subject matter of fresh charges. Learned Single Judge did not accept the finding of the Labour Court and directed it to look into these charges also on merits. No ground has been raised in appeal in respect of this finding and direction of the learned single Judge. It must therefore be deemed to have become final.
(3.) IN regard to the first charge, the contention of the Workman was that he was an employee within the meaning of the U.P. Dookan Aur Vanijya Adhisthan Adhiniyam, 1962 (hereinafter referred to as the Act) and was accordingly entitled to a weekly holiday and as other workmen enjoyed Sunday as a holiday he was also entitled to it and therefore committed no misconduct by absenting himself on Sundays. The case of the employer, on the other hand, was that Ram Het being employed for domestic work was not an employee within the meaning of the Act and was not entitled to any holiday and in any case, it was the employer's choice to fix the day when he should have a holiday and the employee could not, on hip own volition, take Sunday to be the holiday. The Labour Court accepted the plea raised by the workman and held that there was no misconduct committed by him in absenting from duty on Sundays. The learned single Judge held that the view of the Labour Court was erroneous in law and the workman wan not entitled as of right to take Sunday as a weekly holiday. In appeal before us, learned Counsel for the Appellant has again raised the same contentions. Section 2(6) of the Act defines an employee in these words - - 'Employee' means a person wholly or mainly employee on wages by an employer in, or in connexion with any trade, business or Manufacture carried on in a shop or commercial establishment and includes - - (a) caretaker, mali or a member of the watch and ward; staff; (b) any clerical or other staff of a factory or industrial establishment, which is not covered by the provisions of the Factories Act, 1948 Act LXIII of 1948; and (c) any apprentice or a contract or piece rate worker; Learned counsel cell tended that the workman concerned will be an employee within the meaning of Clause (b) of Sub -section (6) of Section 2 or, alternatively, under the main clause of the definition. We are unable to accept tip contention.;