Jayaben W/O. Narayandas Nathumal Hemrajani Vs. District Collector and ors. - 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. d.n. patel, j.1. the present petition has been preferred against the order dated 4th july/august, 2005 passed by the district development officer, vadodara (annexure 'g' to the memo of the petition) to the effect that under section 67 of the bombay land revenue code, 1879, there is a breach of condition by the present petitioner, and therefore, penalty has been imposed upon the petitioner for the fact that after getting n.a. permission for the land in question, the petitioner has not started non-agricultural usage of the land in question.2. i have heard the learned counsel for the petitioner who has submitted that initially the petitioner had in mind non-agricultural usage for the land in question, and therefore, an application was preferred for getting n.a. permission which was granted by the concerned respondent authority vide order dated 26th march, 1997 and 4th october, 1997. but thereafter, for the reasons beyond the control of the present petitioner, the non-agricultural usage which was permitted to the petitioner was not brought into effect. but agricultural operations were continued by the present petitioner. thereafter, an application was preferred on 15th july, 2004 under rule 91 of the gujarat land revenue rules, 1972, for agricultural assessment of the property in question as non-agricultural usage was never started by the present petitioner. but instead of allowing this application under rule 91 of the rules of 1972, a show-cause notice was given by respondent no. 3 dated 29th april, 2005 for the alleged breach of section 67 of the code, 1879 which was replied in detail, but a final order was passed by the respondent no. 3 on 29th april, 2005 (annexure 'h' to the memo of the petition) in pursuance of their resolution dated 4th july, 2005 (annexure 'j' to the memo of the petition), whereby penalty has been imposed upon the present petitioner for the alleged breach of section 67 of the code of 1879 as the petitioner has not started non-agricultural usage of the property in question after getting n.a. permission. it is submitted by the learned counsel for the petitioner that n.a. permission is not imposing a duty upon petitioner, to start non-agricultural operation. on the contrary, it is the power vested in the petitioner that as and when the petitioner wants to start non-agricultural usage of the property in question within time stipulated in the permission, it can be started. subject to the conditions of n.a. permission, it is the power vested in the petitioner to start non-agricultural usage. non-agricultural usage permission is not a duty cast upon the present petitioner, and hence, the notice issued by the respondent no. 3 dated 29th april, 2005 and the consequent order passed by the respondent no. 3 dated 29th april, 2005 (at annexures 'e' and 'h' respectively) deserve to be quashed and set aside and a direction may be given to the concerned respondent-authorities to fix agricultural assessment for the property in question in pursuance of an application preferred by the present petitioner under rule 9 of the rules, 1972 which is dated 15th july, 2004.i have heard the learned counsel for respondent no. 3 who has submitted that after getting n.a. permission, the petitioner has not started non-agricultural usage of the property in question, and thereby, there is a loss of revenue to respondent no. 3. in fact, after getting n.a. permission, the petitioner ought to start non-agricultural usage of the property in question, and therefore, show-cause notice was given by the respondent no. 3 on 29th april, 2005, and thereafter, a final order was passed on 4th august, 2005. it is also submitted by the learned counsel for respondent no. 3 that the impugned order is an appeal able order, and hence, the petition may not be entertained by this court.3. i have also heard the learned assistant government pleader for the respondent-state who has submitted that after getting n.a. permission from the concerned respondent authorities, the petitioner ought to have started non-agricultural usage of the property. by not doing this, there is a loss of revenue to the state government and the impugned order passed by the respondent no. 3 dated 4th july/august, 2005 is an appealable order.4. having heard the learned counsels for both the sides and looking to the facts and circumstances of the case, the order dated 4th july/august, 2005 passed by the respondent no. 3 district development officer, vadodara (at annexure 'g') to the memo of the petition is hereby quashed and set aside mainly for the following facts and reasons:(i) the present petitioner applied for non-agricultural usage permission for the land bearing survey no. 136/3 situated at village tulsigam, ta. : savli, dist. : vadodara, admeasuring 55,652 sq. mtrs. for excavation of stones. non-agricultural usage permission was granted by the concerned respondent-authorities on 26th march, 1997 and 4th october, 1997. the petitioner continued with agriculture upon the land in question. non-agricultural usage was never started. looking to the facts of the present case and the provisions of the bombay land revenue code, n.a. permission granted is not the duty cast upon the petitioner that the petitioner ought to start with non-agricultural usage. on the contrary, it is the power vested in the petitioner to whom n.a. permission is given to start or not to start non-agricultural usage of the property.(ii) looking to the facts of the present case, for the land bearing survey nos. 132, 131 and 135 after getting n.a. permission, the petitioner continued agricultural usage and has not excavated stones from the land in question. it is not the case of the respondents that non-agricultural usage has already been started, and therefore, there is no question of non-agricultural assessment for the land in question whatsoever arises. there is no breach of section 67 of the code of 1879. non-agricultural usage permission merely enables the petitioner to start non-agricultural usage. the state cannot compel citizens to start with non-agricultural operations no sooner did n.a. permission is given.(iii) looking to the facts and circumstances of the case, despite alternative remedy is available, i see no reason to relegate the present petitioner to alternative remedy. in fact, alternative remedy is no bar for entertaining the petition. in the facts of the present case, the present petitioner continues with agricultural operation for the land bearing survey nos. 132, 131 and 135. with this admitted fact, i see no reason to relegate the present petitioner to for alternative remedy.5. as a cumulative effect of the above facts and reasons, the impugned order dated 4th july/august, 2005 passed by the respondent no. 3 is hereby quashed and set aside. the concerned respondent-authority is hereby directed to assess the land in question for agricultural purpose, in pursuance of the application preferred by the petitioner under rule 91 of the rules, 1972 which is dated 15th july, 2004, as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of writ from this court. rule made absolute accordingly with no order as to costs.