Mohanbhai Ranchhodbhai Patel Vs. State of Gujarat 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. - learned sessions judge noted that no writing regarding transfer of the truck was found on record, and on the basis that the appellant had failed to take all necessary precautions against the use of the truck in committing a forest offence, confirmed the order of confiscation. the orders of seizure and confiscation which are not challenged on any other ground could not be defeated by an illegal transfer of the truck. and even if such information were disclosed to the authorised officer and the petitioner had the opportunity to raise the objection that he was a bona fide purchaser of the truck for value, such objection could not have been accepted because the transaction of transfer could not be substantiated even afterwards and it would clearly have been in violation of the bond executed by the original owner. that submission does not provide any ground for grant of any relief, but it only highlights how prolonged pendency of the proceedings for 14 years has resulted into failure of justice and frustration of the stringent provisions of law.d.h. waghela, j.1. invoking articles 226 and 227 of the constitution, the petitioner has sought to indirectly challenge and put to naught the order dated 6-2-1991 of dy. conservator of forest and the judgment and order dated 20th january, 1992 of the learned sessions judge in criminal appeal no. 10 of 1991 whereby truck no. gto 2668 was ordered to be confiscated and the appeal therefrom was dismissed. petitioner was not a party to the first confiscation proceedings.2. on 12-6-1985, range forest officer had caught the said truck for its involvement in illegally carrying the wood stolen from forest area. after seizure of the truck, the registered owner, respondent no. 4 herein, had approached this court and obtained interim relief on 26-7-1985 of releasing the truck on executing a bond and furnishing security. thereafter, the truck is stated to have been sold to the present petitioner on 15-9-1989 and transferred in his name on 16-1-1990. on the other hand, the dy. conservator of forest held proceedings under the provisions of sections 61a and 61b of the indian forest act, 1927, as amended by gujarat amendment vide act 15 of 1960 and act 19 of 1983 (for short 'the act') and ordered confiscation of the truck by the order dated 6-2-1991 after affording to the original owner requisite opportunity of being heard by issuing notice dated 13-9-1990. the original owner had only made a written representation before the dy. conservator, without mentioning anything about transfer of the truck. such transfer, in any case, would have violated the bond executed by him. thereafter the present petitioner challenged that order in criminal appeal no. 10 of 1991 before the learned sessions judge, surat and contended that, at the relevant time, the truck owned by the original owner was purchased by him on and from 27-3-1990 and that he had paid rs. 2,23,501/- as price for the truck involved in theft of the goods. learned sessions judge noted that no writing regarding transfer of the truck was found on record, and on the basis that the appellant had failed to take all necessary precautions against the use of the truck in committing a forest offence, confirmed the order of confiscation.3. learned advocate mr. a. d. shah appearing for the petitioner vehemently argued that learned sessions judge has decided the appeal as if petitioner were the owner of the truck at the time the offence was committed and the truck was caught. he submitted that learned sessions judge lost sight of the fact that it was after five years of the seizure of the truck that it had come to be transferred to the petitioner, and as a bona fide purchaser of the truck, without notice of the pendency of any proceedings, he was entitled to protection of his proprietary rights even as the original owner could be prosecuted, punished and the security furnished by him encashed for violation of the conditions of the bond. he submitted that the petitioner could not be punished for default or offence committed by the original owner.4. learned a.p.p. mr. s.s. patel vehemently argued that the petitioner had no locus standi in the matter, that he was a party to an unscrupulous or unsubstantiated transaction of transfer and trying to step into the shoes of the original owner to defeat the order of confiscation made by the dy. conservator of forest. he submitted that, apparently, the so-called transaction of transfer of truck between the original owner and the present petitioner was a collusion because no evidence whatsoever of the petitioner being a bona fide purchaser for value without notice was produced before the court. he submitted that any other action or complaint by the petitioner against the original owner was conspicuous by its absence in the facts of the present case.5. the facts required to be noted are that officers of the forest department have taken their own time in initiating the proceedings under section 61a of the act, and the truck which was seized on 12-6-1985 came to be confiscated by the order dated 6-2-1991. that however, does not absolve the original owner from his obligation to abide by the conditions of the bond subject to which the truck was released to him by way of interim relief. therefore, admittedly the transfer of the truck, even if genuine and bona fide for the purchaser, was illegal. the orders of seizure and confiscation which are not challenged on any other ground could not be defeated by an illegal transfer of the truck. according to express provisions of section 61b of the act, notice in writing is required to be given to the person from whom vehicle was seized, informing him of the ground on which it was proposed to confiscate it; and the authorised officer is required to consider his objection, if any. that requirement is fulfilled in facts of the present case. further requirement of giving notice in writing to the registered owner of the vehicle is subject to the condition that, if in the opinion of the authorised officer it is practicable to do so. in the facts of the present case, it was never disclosed to the authorised officer and he had no reason to suspect that the truck might have been transferred inviolation of the bond executed by the original owner. therefore, even if the registered owner on the date of the order of confiscation was the petitioner, it was not practicable for the authorised officer to give him a notice for granting him an opportunity of being heard and of considering his objections, if any. and even if such information were disclosed to the authorised officer and the petitioner had the opportunity to raise the objection that he was a bona fide purchaser of the truck for value, such objection could not have been accepted because the transaction of transfer could not be substantiated even afterwards and it would clearly have been in violation of the bond executed by the original owner.6. therefore, in the peculiar facts and for the reasons discussed hereinabove, this court would not be justified in exercising its extra-ordinary jurisdiction to quash the impugned orders whereunder the truck was confiscated and had vested in the government free from all encumbrances. according to the last submission of mr. shah, the petitioner was, by way of interim relief in this petition, entrusted the truck on conditions of executing a bond and furnishing surety, and by now, the truck was kept under 'non-use permit' in a poor condition after running it upto the year 2001; although an undertaking was filed in this court to undertake that the truck would be maintained by him in good and road-worthy condition and that it would be produced as and when required. that submission does not provide any ground for grant of any relief, but it only highlights how prolonged pendency of the proceedings for 14 years has resulted into failure of justice and frustration of the stringent provisions of law.7. accordingly, the petition is dismissed, interim relief is vacated and rule is discharged with the direction to the petitioner to surrender the truck no. gto 2668 to the respondent no. 3 with costs quantified at rs. 2,500/-.