State of Gujarat Vs. Akbalsing Rameshwarsing - Court Judgment

Excerpt:
- 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 whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. if a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. however, the court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. the 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 falls within the definition of workman under section 2 (s) of the i.d. act. sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. however, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the i.d. act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. if a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the court will have to consider the nature of engagement in both the establishments. however, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the court will take these facts into consideration. - esi corporation examined a witness, who made a candid admission in the cross-examination and clearly admitted that the workman had worked for 12 hours a day, he was entitled to the payment for overtime and as the same was required to be paid to him, he was justified in filing recovery application.r.s. garg, j.1. shri i.m. pandya learned assistant government pleader for the petitioner-state; shri u.t. mishra, learned counsel for the respondent.2. the petitioner-state being aggrieved by the order dated february 10, 1999, passed by the labour judge, ahmedabad, in recovery application no. 1962/1987 is before this court under article 227 of the constitution, with a submission that in absence of a pre-adjudicated right or admitted right, the labour court had no jurisdiction to proceed with the recovery] application and direct recovery against the petitioner.3. it is to be noted that the state government, was undisputedly not a party before the labour court, the only party before the labour court was director, esi corporation. however, present petition came to be filed by the state government through the/director of esi corporation.4. the petition, at the instance of the state government would not be maintainable but however, i will take it to be a petition for and on behalf of the director of esi corporation.5. the workman came to the labour court with a submission that he had worked for 12 hours a day and as he had worked overtime, in accordance with the service conditions and the rules, he was entitled to overtime and as the same has not been paid to him, a direction for payment be issued.6. the petitioner appeared before the labour court and submitted that the original applicant/workman was an employee of the state government, therefore, he was governed by the bombay civil services rules. they also submitted that the provisions of the industrial disputes act, employees state insurance act and employees provident funds and miscellaneous provisions act would not apply, payment of wages act or minimum wages act would also be not applicable.7. the workman stepped into the witness box and submitted that he was entitled to the overtime. esi corporation examined a witness, who made a candid admission in the cross-examination and clearly admitted that the workman had worked for 12 hours a day, he was entitled to the payment for overtime and as the same was required to be paid to him, he was justified in filing recovery application. relying upon the said admissions made by the witness, the court below ordered the present petitioner to pay a sum of rs. 40,950/- as amount for overtime work.8. shri i.m. pandya, learned agp for the petitioner, in the present matter submitted that though a plea was raised before the labour court that the respondent was a government servant but in view of section 17 of the esi act, he could not be taken to be a government servant and as such, bombay civil services rules would not apply. he further submitted that unless there was a pre-adjudicated right or there was an admitted right, the workman had no right to come to the labour court under section 33-c(2) of the industrial disputes act. in the opinion of this court, this argument cannot be allowed to stand. true it is that the proceedings under section 33-c(2) are in nature of execution application and filing of an application must stand on the foundation of a pre-adjudicated or pre-admitted right i but such rule would not apply to a case where a party-non-applicant appears before the court and admits the entire claim made by the workman. the above referred rule would apply to a case where a party-non applicant appears and submits that they were raising a factual dispute, therefore, the court would have no jurisdiction to direct recovery under section 33-c(2) of the industrial disputes act. in the present case, the witness examined by the esi corporation stated before the court that the workman had worked for 12 hours a day, he had worked overtime, he was not paid any money for overtime work. if these are the admissions, then, the party-non applicant cannot be allowed to say that as they are raising some dispute though they are admitting the claim, the court would have no jurisdiction.9. in the opinion of this court, the court below was absolutely justified in granting the application. i find no reason to interfere. the petition is dismissed with costs of rs. 5,000/- (rupees five thousand only). interim relief, if any, is vacated.