The State Vs. Mohanlal Narandas

The State vs Mohanlal Narandas

Type Court Judgment Court Gujarat Decided Aug 12, 1960

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Citation: sooperkanoon.com/750346
Court: Gujarat High Court
Judge: V.B. Raju, J.
Decided On: Aug 12, 1960
Subject: Tenancy

Case Summary

AI-generated summary - not the official court judgment text.

- INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either...

Key legal issue: Tenancy

Parties & Advocates

Appellant / Petitioner

The State

Respondent

Mohanlal Narandas

Legal References

Reported In: (1960)1GLR156

Excerpt

.....control test is one of the important tests, but is not to be taken as the sole test. it is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. the other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. a full time worker usually works in a week for 40 hours or more depending on the award or agreement. if a person falls under the definition of workman under section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the i.d. act, and he will be entitled to all the benefits under the said act. a perusal of section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the i.d. act. however, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. the control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person..........any premises shall on conviction be punishable with fine which may extend to one hundred rupees.3. it is therefore only when an amount is received by the landlord that he should give a written receipt at the time when the amount is received. the words when such amount is received are important. in the case of a cheque the mere giving of a cheque does not amount to giving any amount. the date when the amount is received and the amount received have to be intimated by the landlord's bank. sometimes cheques may be dishonoured. therefore unless the cheque is credited to the account of the landlord he is not bound to give a receipt under section 26(1) of the bombay rent act. the amount for which the receipt has to be given also depends on the exact amount realised. it is true that in order to evict a tenant a landlord might not cash the cheque but in order to avoid such a contingency the tenant must pay the rent either in cash or by money order. a cheque is merely an order to a bank to pay money to the payee of the cheque. it is not a payment of money. the conviction of the petitioner under section 26 (2) of the bombay rent act is therefore erroneous.4. the reference is accepted and the conviction and sentence passed upon the petitioner are set aside. fine if paid should be refunded.

Full Judgment

V.B. Raju, J.

1. This is a reference by the learned Sessions Judge of Ahmedabad, recommending that the conviction of one Mohanlal Narandas who will be hereinafter referred to as the petitioner under Section 26 of the Bombay Rent Act for not having given a receipt when he was given a cheque by his tenant for Rs. 28-63 np. being rent for the month from 1-7-59 to 31-7-59. The cheque was not encashed by the landlord who returned it. The learned Judicial Magistrate First Class Second Court Ahmedabad was of the view that the landlord should not have retuned the cheque but should have given a receipt. He therefore convicted the petitioner under Section 26(2) of the Bombay Rent Act and sentenced him to a fine of Rs. 10/- in default seven days' simple imprisonment. The learned Sessions Judge is of the view that this conviction is erroneous because no money is received until a cheque is actually cashed or until the amount of the cheque is credited in the bank account of the landlord. His view is that if a cheque is not cashed but returned it cannot be said that the amount was actually received by the payee of the cheque. The learned Sessions Judge therefore thought that Section 26 of the Bombay Rent Act should be strictly construed and that therefore the conviction of the petitioner was wrong.

2. I accept the reference for the following reasons: Section 26 of the Bombay Rent Act reads as follows:

26(1). Every landlord shall give a written receipt for any amount at the time when such amount is received by him in respect of any premises in such form and in such manner as may be prescribed. (2) Any landlord or person who fails to give a written receipt for any amount received by him in respect of any premises shall on conviction be punishable with fine which may extend to one hundred rupees.

3. It is therefore only when an amount is received by the landlord that he should give a written receipt at the time when the amount is received. The words when such amount is received are important. In the case of a cheque the mere giving of a cheque does not amount to giving any amount. The date when the amount is received and the amount received have to be intimated by the landlord's bank. Sometimes cheques may be dishonoured. Therefore unless the cheque is credited to the account of the landlord he is not bound to give a receipt under Section 26(1) of the Bombay Rent Act. The amount for which the receipt has to be given also depends on the exact amount realised. It is true that in order to evict a tenant a landlord might not cash the cheque but in order to avoid such a contingency the tenant must pay the rent either in cash or by money order. A cheque is merely an order to a Bank to pay money to the payee of the cheque. It is not a payment of money. The conviction of the petitioner under Section 26 (2) of the Bombay Rent Act is therefore erroneous.

4. The reference is accepted and the conviction and sentence passed upon the petitioner are set aside. Fine if paid should be refunded.

Same Parties The State vs Mohanlal Narandas Same Subject Tenancy Same Judge V.B. Raju, J.

Tenancy