Abdul Razak Haji Gulambhai Qureshi Vs. Johrabibi Haji Kalubhai Qureshi and anr. - 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.h. waghela, j.1. the petitioner-husband has preferred the present petition under article 227 of the constitution against his divorced wife and her daughter, since he was aggrieved by the order of the learned j.m.f.c., dabhoi awarding rs. 200/- per month by way of maintenance to the daughter, and that order was upheld in revision.2. the respondents had claimed maintenance from the petitioner under the provisions of section 125 of the code of criminal procedure. during the course of trial it was found and recorded as a finding of fact by the trial court that the petitioner had no access to the respondent - wife when the daughter was conceived. however, in view of the fact that the wife was, at the relevant time, allowed to live in the family of the petitioner and was divorced on 20.6.1987 after about two years of knowledge and even celebration of conception of a child by the wife, the daughter was ordered to be paid rs. 200 by way of maintenance. the revision application of the petitioner, preferred from the said order, was rejected on the ground that the provisions of section 125 of the code of criminal procedure entitled even an illegitimate minor child to a reasonable amount of maintenance. the revisional court observed that the subject of legitimacy could only be decided by a competent civil court and the criminal court had only to adjudicate on the basis of the evidence regarding birth of the child during subsistence of the marriage.3. learned counsel mr. m.t.m. hakim vehemently argued that the respondent-wife who was divorced before the applications for maintenance were filed had not preferred any revision or appeal which amounted to admission and acceptance of the fact that the daughter was illegitimate and the wife was, at the relevant time, living in adultery. he further submitted that the child born out of illicit relationship of the wife, while the petitioner was abroad, was not entitled to maintenance from the petitioner who was the husband for the time being but certainly not the father of the child. he submitted that the provisions of section 125 of cr.p.c. entitled even an illegitimate minor child to maintenance from a person provided the child was a legitimate or an illegitimate minor child of that person; but a person cannot be saddled with the liability to maintain a child of someone else. he, therefore, submitted that both the lower courts had committed serious error of law in awarding maintenance to the respondent no. 2. the learned counsel relied upon judgment of the orissa high court in smt. ahalya bariha @ barihani v. chhelia padhan 1992 cr. l.j. 493, wherein his lordship justice a. pasayat (as his lordship then was) observed that, where maintenance is claimed for an illegitimate child from an alleged father, it is not enough that defendant would have been the father, but the court has to find out that in all reasonability no one else could have been the father. it is also observed that the right of the child, legitimate or illegitimate, under the code is an individual right of the child in his or on her own right, independent of the mother. when a woman claims maintenance on behalf of a minor child out of wedlock against his alleged putative father, the onus is on her to show that the child could only have been born through the alleged father under the circumstances of an exclusive relationship.4. in view of the above clear factual position of the child having been born during the period of wedlock but without the father having access to the wife at the relevant time, the daughter could not have, in the eye of law, even the status of an illegitimate child of the petitioner. both the lower courts apparently lost sight of the word 'his' occurring in sub-clause (b) of sub-section (1) of section 125 of cr.p.c. therefore, an error of law apparent on the face of the record appears to have crept into the orders of both the lower courts resulting into a unsustainable order which is required to be set aside. it is, however, also necessary to observe that, even in absence of any challenge to the findings of fact by the divorcee wife, the finding or the inference that the wife was 'living in adultery' may not be taken as approved or confirmed by this court.5. in the above facts and circumstances, with the above observations, the petition is allowed and the impugned order dated 30.1.1997 in criminal misc. application no. 179 of 1994 of the learned j.m.f.c, dabhoi and the order dated 12.9.1997 in criminal revision application no. 31 of 1997 of the learned additional sessions judge, vadodara are set aside. rule is made absolute with no order as to costs.learned counsel mr. m.t.m. hakim fairly stated that the amounts already paid to the respondents shall not be recovered from them.