Aarti Dyeing and Printing Mills Pvt. Ltd. Vs. Union of India (Uoi) - 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. - m/238/wzb/2005/c-iii, s/351/wzb/2005/c-iii, a/523/wzb/2005/c-iii, dated 27-4-2005 passed by the customs, excise & service tax appellate tribunal, west regional bench at mumbai (cestat) as well as the order-in-appeal no. 6. it is the case of the petitioners that around first week of march, 2003 the aforesaid order-in-appeal was received by one shri ajit shah, cost accountant, working with the petitioners and looking after accounts as well as excise work. 7. it is the case of the petitioners that on the basis of the above communications issued by the range superintendent, the petitioners came to know about the order-in-appeal passed by the commissioner (appeals). that, therefore, on 7th august, 2004, the petitioners preferred an appeal challenging the same before cestat, mumbai together with an application for condonation of delay as well as application for stay. that by the impugned order dated 27th april, 2005, cestat declined to condone the delay of 455 days and dismissed the application, stay application as well as the appeal. 8. when the matter came up for hearing at the notice stage, this court was not satisfied with the reasons stated for the delay in preferring the appeal before cestat.h.n. devani, j.1. learned advocate, mr. dhaval shah, seeks permission to amend the prayer clause. permission granted. amendment to be carried out immediately.2. heard mr. dhaval shah, learned advocate for the petitioners, and mr. jitendra malkan, for the respondents.3. rule. mr. malkan waives service of rule on behalf of the respondents. as the controversy involved in the present petition lies in a very narrow compass the same is taken for final hearing and disposal.4. this petition challenges the order nos. m/238/wzb/2005/c-iii, s/351/wzb/2005/c-iii, a/523/wzb/2005/c-iii, dated 27-4-2005 passed by the customs, excise & service tax appellate tribunal, west regional bench at mumbai (cestat) as well as the order-in-appeal no. ypp/229/srt/2003, dated 13th february, 2003 passed by the commissioner (appeals), central excise & customs, surat-1 in appeal f. no. v-2(54)169/srt-i/div-ii/2002.5. by an order dated 7th august, 2002, passed by the joint commissioner, central excise & customs, a demand of rs. 3,00,000/- had been confirmed against the petitioners and an equal amount of penalty had been imposed. the petitioners carried the matter in appeal before the commissioner (appeals), surat who by a common order dated 13th february, 2003 passed in five appeals, including the one filed by the petitioners, dismissed the appeals.6. it is the case of the petitioners that around first week of march, 2003 the aforesaid order-in-appeal was received by one shri ajit shah, cost accountant, working with the petitioners and looking after accounts as well as excise work. that shri shah was terminally ill and on account of his ill-health was not in a position to attend his work regularly, and ultimately, he expired in the second week of august, 2003. it is the case of the petitioners that they were not aware of the aforesaid order-in-appeal as shri shah had not informed the management of the petitioner-company about the same and hence, could not prefer appeal before cestat within the stipulated time limit. by a communication dated 21st june, 2004 the range superintendent called upon the petitioners to deposit amount of duty and penalty pursuant to the aforesaid order-in-appeal. by communications dated 6th july, 2004 and 26th july, 2004, reminders were issued by the superintendent calling upon the petitioners to make the above payments.7. it is the case of the petitioners that on the basis of the above communications issued by the range superintendent, the petitioners came to know about the order-in-appeal passed by the commissioner (appeals). that, therefore, on 7th august, 2004, the petitioners preferred an appeal challenging the same before cestat, mumbai together with an application for condonation of delay as well as application for stay. that by the impugned order dated 27th april, 2005, cestat declined to condone the delay of 455 days and dismissed the application, stay application as well as the appeal.8. when the matter came up for hearing at the notice stage, this court was not satisfied with the reasons stated for the delay in preferring the appeal before cestat. on behalf of the petitioners, time was sought to place on record a further explanation explaining the delay in preferring the appeal. accordingly, by a further affidavit dated 14th october, 2005 the petitioners stated various reasons for the delay caused in filing the appeal. one of the grounds stated in the further affidavit reads as follows:1. it is respectfully submitted that there was no willful default on part of the petitioners in not appearing before the commissioner (appeals) who has passed oia nos. ypp/229 to 233/srt/2003 thereby disposing of 5 appeals of 4 appellants including the petitioner company. we have never received any notice of personal hearing from the office of the commissioner (appeals) for the appeal in question, and we have learnt on enquiry with all other appellants whose appeals were also disposed of by the above common order that none of them has also received any hearing notice of their appeals from the office of the commissioner (appeals) in this regard. we have also caused enquiries with the office of the commissioner (appeals), surat and we have come to know that none of these 4 appellants including the petitioners herein was served with the hearing notice and none of these appellants knew when the appeals were fixed for personal hearing, and there is also no evidence in the file of this case in the office of the commissioner (appeals) showing that any of these appellants including the petitioner company was served with any hearing notice. thus, it is clear that why none of the 4 appellants appeared before the commissioner (appeals) and why all the 5 appeals of these 4 appellants have been decided ex parte by the commissioner (appeals) vide the above common order.it is therefore, respectfully submitted that the order of the commissioner (appeals) has been made in violation of principles of natural justice and there has not been any deliberate lapse or negligence of petitioners' part in not appearing before the commissioner (appeals) in this case.9. on 17th october, 2005 notice was issued in the matter. in response to the notice, the respondents have put in appearance and have filed two affidavits-in-reply dated 28th november, 2005 and 18th january, 2006. however, the contention of the petitioners that notice of hearing in relation to the appeal before the commissioner (appeals) had not been served upon the petitioners had not been dealt with. hence, the learned counsel for the respondents, was directed to obtain instructions in that regard.today, mr. malkan has placed on record a communication dated 23rd february, 2006 addressed to him by the assistant commissioner, central excise & customs division-ii, surat-1, wherein it is stated that upon verification from the office records acknowledgment of personal hearing letter dated 20th january, 2003 is not available. therefore, it is apparent that the respondents are not in a position to controvert the specific contention raised by the petitioners that the order-in-appeal has been passed without affording an opportunity of hearing to them.10. in the light of the aforesaid factual position, it is not necessary to enter into any further discussion as regards the merits of the order passed by cestat. the order-in-appeal issued on 13th february, 2003 passed by the commissioner (appeals) having been passed in violation of the principles of natural justice, stands vitiated on that count alone. in the circumstances, restoring the matter to cestat would not serve any fruitful purpose. the order-in-appeal itself is required to be set aside on the ground of breach of principles of natural justice, and the matter is required to be restored to file of the commissioner (appeals) for deciding the same afresh after affording the petitioners an adequate opportunity of hearing.11. in the circumstances, the impugned order-in-appeal no. ypp/229/srt/2003, dated 13th february, 2003 is hereby quashed and set aside. appeal f. no. v-2 (54) 169/srt-i/div-ii/2002 is restored to the file of the commissioner (appeals). the commissioner (appeals) shall give an opportunity of hearing to the petitioners and pass a fresh order thereon.12. in the aforesaid facts and circumstances, the impugned order nos. m/238/wzb/2005/c-iii, s/351/wzb/2005/c-iii, a/523/wzb/2005/c-iii, dated 27-4-2005 of the tribunal will not survive. hence, the same is also quashed and set aside.13. in the result, the petition is allowed. rule is made absolute, accordingly, with no order as to costs.