Chunilal Chhaganlal and ors. Vs. State - 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. v.b. raju, j.1. this revision application arises out of the judgment of the learned sessions judge, nadia, who confirmed in appeal the convictions of the seven applicants under section 5 of the bombay prevention of gambling act and the sentences passed on them of fine of rs. 200/- each, in default imprisonment for one month.2. in revision, the learned counsel for the applicants has argued three points: (1) that the conviction under section 5 of the gambling act is not justified when the p. s. i. who made the search under section 6 of the gambling act is contradicted by both the panchas, who say that they were not present in the room at the time when it was searched, although according to the p. s. i. the search was made in the presence of the panchas; (2) that such a conviction is not justified when the p. s. i. is contradicted by the head constable, who accompanied him, and who has deposed that he does not remember whether the particular room, in which, according to the prosecution, instruments of gaming were found, was or was not searched; and (3) that on the evidence, no reasonable court would have convicted the accused when the conviction is based on presumption arising under section 7 of the gambling act in view of the contradictions between the p. s. i. and the head constable and in view of the contradictions between the p. s. i. and the panchas.3. in this case, the two panchas, who were taken at the time of the search of the place by the warrant issued under section 6 of the gambling act, did not support the p. s. i. one of the panchas denied having been shown the warrant. one of the panchas says that he did go upstairs. the second panch said that he voluntarily remained on the otla downstairs, and both the panchas say that the police brought the accused downstairs and also showed them the instruments of gaming, which are alleged by the p. s. i. to have been found in the room at the time of the search.4. it is important to note that this is a case where a search was made under section 6 of the gambling act. there is no provision in the gambling act applying the provisions of section 102, cr. p. c. to a search under section 6 of the gambling act. there is also nothing in the cr. p. c. applying the provisions of section 103, cr. p. c. to a search under section 6 of the gambling act. section 103, cr. p. c. which makes it obligatory to make a search in the presence of two panchas, applies only to searches under chapter vii of the cr. p. c. when the police authorised by a warrant makes search of a place under section 6 of the gambling act, it is not obligatory to search the place in the presence of two panchas as required by section 103, cr. p. c. this is also the view taken in emperor v. raghunath lahanusa, 34 bom lr 901: (air 1932 bom 610). the learned sessions judge referred to the principles enunciated in emperor v. shanwar manu, 52 bom lr 38 : air1950bom267 which was a case relating to a conviction under the prohibition act, which provides that all searches made under the prohibition act should be made in accordance with the provisions of the cr. p. c. it is, therefore, unnecessary to consider the principles discussed in 52 bom lr 38 : air1950bom267 as that case refers to a search under the prohibition act, whereas we are dealing with a search under the provisions of the gambling act to which the provisions of section 103, cr. p. c. do not apply.5. it is, however, contended by mr. amin that although the presence of two panchas is not obligatory under section 6 of the gambling act, if in fact two fanchas are taken the same principle should be applied. it is difficult to accept this contention. it panchas are not obligatory, the ordinary principles of appreciation of evidence should be applied. the fact that there is a contradiction between the evidence of the p. s. i. and that of the head constable would not justify my interference with the conviction in revision. similarly, the contradiction between the evidence of the p. s. i. and that of panchas would not justify interference in revision by the high court. that is a matter of ordinary principles of appreciation of evidence.6. the last point urged by mr. amin is that on the evidence no reasonable court would have convicted the accused when the conviction is based on the presumption arising under section 7 of the gambling act in view of the contradictions in the evidence. it is difficult to agree with this contention in view of the fact that the p. s. i. has deposed that instruments of gaming were found in the room which was searched. the head constable also deposed that the instruments of gaming were found but be does not remember in what room they were found. the panchas also deposed that the instruments of gaming found by the p. s. i were shown to them when they were downstairs. therefore, it cannot be said that no reasonable court would have convicted the accused on evidence.7. mr. amin also relied on a decision of this court given by me on 8-7-1960 in state v. raijibhai, criminal ref. no. 14 of 1960: (air 1960 guj 24). but that related to a case of prohibition. it is therefore unnecessary to discuss that case.8. the revision application is therefore rejected.