Sawa Vs. Kuka - 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. - the law is well settled that if the original document is inadmissible in evidence owing to its being unstamped or unregistered, secondary evidence is inadmissible vide 'janardhan kashinath v. where a party comes into ct resting his claim on a written title which the law requires to be registered, he cannot, when he has failed to register, & is, in consequence, unable to use his title-deed, turn round & say that he could prove his title by secondary evidence. the two cts have rightly held that the pltf has failed to prove the mtge relied upon by him & that he is not entitled to succeed.bapna, j.1. this is a second appeal in a suit for redemption. the pltf sued the resp for redemption of a field on the allegation that it; had been mtged for a sum of rs. 50/- about 14 years ago but the deft was not prepared to redeem the possession after taking the amount of mtge money. the suit was instituted on 7-7-1945. the deft denied the mtge & alleged that the field had been actually sold by a dead dated the asad vadi 1 st. 1992 in lieu of rs. 50/-. the trial ct dismissed the suit & the same judgment was upheld in appeal.2. it was argued that the deed relied upon by the deft being unregistered was inadmissible in evidence & since the deft virtually admitted the pltf's prior title & the suit was not barred by limitation, the pltf should succeed even if the mtge was not proved. it was also argued that the transaction of mtge was by oral contract & the evidence led in support thereof should have been accepted by the two cts. the learned counsel for the resp argued that whatever may have been the law in mewar prior to 1948, the provisions of the indian t. p. act & the indian registration act were made applicable after 1948, i.e., during the pendency of this litigation & that the sale-deed was admissible for the collateral purpose of showing how the possession of the deft started & also for the purpose of taking advantage of the doctrine of part performance laid down in section 53a, t. p. act. the registration act of merwar iii (3) of st. 1988 was introduced on 1-7-1932 & toy section 5 thereof, deeds of mtge were required to be registered irrespective of the amount secured by the mtge. it was contended for the appit that this provision was applicable only if the transaction was evidenced by a deed but that in the present case the mtge was oral &, therefore, oral evidence should have been accepted. i find, however, on going through the evidence that every one of the witnesses of the pltf states that the transaction of mtge was effected by a deed. the pltf who is p. w. 4 states that the deed of mtge was executed 9 or 10 years ago. p. w. 1 dewa states having seen the deed of mtge & having been asked by the deft's father to attest it but that he did not do so. p. w. 2 bhamra also said that the transaction was reduced to writing. p. w. 3 bhagga said that he had seen with jalu - deft's father - the deed after it had been executed. learned counsel for the applt argued that in the plaint no reference had been made to the deed but in view of the admission of the pltf & all his witnesses, there is no doubt that according to the pltf the transaction of mtge was entered into by the execution of a deed of mtge. the statement of the pltf was recorded on 2-11-1946, & in that statement he had stated that the deed was executed 9 or 10 years ago, that is, some time in 1936 or 1937. that this deed was not registered is evident from the fact that none of the witnesses has alleged its registration & in fact learned counsel for the applt tried to argue that the document was not brought into existence at all. under the law in mewar which has been referred to above, - registration of a deed of mtge was compulsory. the point now remains to be considered is whether secondary evidence of a document which is required to be registered under the law but has not been so registered is admissible. the law is well settled that if the original document is inadmissible in evidence owing to its being unstamped or unregistered, secondary evidence is inadmissible vide 'janardhan kashinath v. janardhan vishwanath', a.i.r. (14) 1927 nag 214: (101 ic 839). section 65, evidence act presupposes that but for one or more of the barriers to its production stated in the section, the document would have been capable of proving its contents under section 64 read with section 62. it would, therefore, be a manifest absurdity to hold that secondary evidence may be given to establish a fact, proof whereof by primary evidence is forbidden. under no circumstances can secondary evidence be admitted as a substitute for inadmissible primary evidence. where a party comes into ct resting his claim on a written title which the law requires to be registered, he cannot, when he has failed to register, & is, in consequence, unable to use his title-deed, turn round & say that he could prove his title by secondary evidence. the various cases in support of the above proposition are cited in monir's law of evidence, 1948 edn, at p. 528. the pltf's oral evidence of the terms of the deed of mtge was, therefore, inadmissible in evidence. the two cts have rightly held that the pltf has failed to prove the mtge relied upon by him & that he is not entitled to succeed.3. the next plea taken by the deft as to his being the owner of the property under the sale deed cannot be accepted as the deed is not registered. the plea on the doctrine of part performance will only come in for examination if the pltf files the suit on the basis of his title. the learned counsel intimated that the pltf had filed the suit for possession on the basis of title & is pending in the lower ct. the contention raised by the learned counsel for the resp about the admissibility of the document by virtue of the enforcement of the t. p. act & the indian registration act need not also be examined in this appeal. as a result, this appeal has no force & is dismissed with costs.