Abheysingh Vs. the 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. - there has been a good deal of difference of opinion between various high courts on this point. 4. the better view seems to be that no application under order 9, rule 9, will lie for restoration of an application for restoration or setting aside an ex parte decree which has been dismissed for default and we respectfully agree with the high courts which have taken this view we are, further of opinion, that the court should have power in appropriate cases for good reasons to restore applications for restoration or setting aside ex parte decrees which have been dismissed for default under its inherent power given to it by section 161, c. the munsif of jahazpur, therefore, did not act in excess of jurisdiction when he restored the application of 12-12.1948. 5. it has been urged on behalf of the appellant that in this case, the munsif did not even call for an affidavit and that, in any ease, there was no good reason for restoring the application for setting aside the ex parte decree as the state was really not interested in this litigation and was merely a pro forma defendant. we would like to point out to the munsif concerned that he must always insist upon an affidavit in cases of this kind even though the application is made by the government pleader. man does not stand in any better position than any other lawyer and an application made by him in a civil matter is to be supported by an affidavit in the game way as an application by any other lawyer on behalf of any other party. 6. as to the other contention that there was no good reason for the munsif to restore the suit as the state was not really interested in this litigation, we feel that we are not in a position to express any opinion at this stage.1. this is a revision by abhey singh against the order of the munsif of jabazpur in a civil matter. the facts giving rise to this revision are these : abheysingh had filed a suit against kesrimal, bakhtawar and uda for a declaration that 'the lands in suit were not liable to be attached and sold in execution of a decree passed against bakhtawar and uda and in favour of kesrimal. at a later stage, the state council of the former state of mewar was also impleaded as a defendant. on 1-12-1948, an ex parte decree was passed in favour of the present petitioner. thereupon, on 12-12. 1948, an application was made on behalf of the state council for setting aside the ex parte decree. this application was, however, dismissed for default on 14-2 1949. then on 12-3-1949, the government pleader made an application for restoration of the application of 12-12-1948. this application was allowed and the application for restoration dated 12-12-1948 was restored. abheysingh came up in revision against the order restoring the application of 12-12-1948. the case was heard by a learned single judge of this court and he considered that the matter was of sufficient importance to merit decision by a larger bench. that is how the case has come before us.2. the main question for decision is whether the munsif had jurisdiction to restore the application of 12-12-1948, and if so, under what provision of the law. there has been a good deal of difference of opinion between various high courts on this point. some of the high courts have held that the court has power under order 9, rule 9, civil p. c. itself by virtue of section 141, civil p. c, to restore an application for restoration which has been dismissed for default. in support of this view, we may refer to the following cases: loknath v. mt. sattan bai, a. i. r. (10) 1923 lah. 302 : (73 i. c. 821), mt. jamna v. mt. ram raji, a. i. r. (10) 1923 oudh 146 : (74 i. c. 380) and chinnappa naidu. v. deenadayalu naidu, a. i. r. (35) 1948 mad. 480 : (1948-1 m. l. j. 411). as against this view, the high courts of patna, bombay, calcutta, allahabad and nagpur have held that the court has no jurisdiction under order 9, rule 9 to restore an application for restoration which is once dismissed for default. the following cases support this view, namely, ramgulamsingh v. sheodeonarain singh, a. i. r. (9) 1922 pat. 121: (4 pat. l. j. 287), manke v. b. walwekar, a. i. r. (10) 1923 bom. 386: (80 i. c. 182), pitambarlal v. dodeesingh, a. i. r. (11) 1924 all. 503 : (46 all. 319), surendranath v. jatindranath, a. i. r. (16) 1929 cal. 17 : (115 i. c. 367) and brijmohan v. baghoba, a. i. r. (19) 1932 nag. 101 : (28 n. l. r. 83).3. but even though these five high courts have held that an application for restoration once dismissed for default cannot be restored under order 9, rule 9, it is remarkable that they have also held that the court has jurisdiction under its inherent power under section 151, civil p. c. to restore such an application for restoration, if it is in the interest of justice to do so. we may in this connection refer to the case of harbans singh v. suresh dutt, a. i. r. (16) 1929 all. 624 : (118 i. c. 669) where a division bench of that court held that the court could under section 151, civil p. c. restore an application made for the restoration of the suit. the calcutta high court in the case of surendra nath v. jatindra nath, a. i. r. (16) 1929 cal. 17 : (115 i. c. 357) already cited while holding that such an application for restoration could not be restored under order 9, rule 9, went on to say that in order to do that real and substantial justice for the administration for which the courts exist, the courts can use section 151, c. p. c. in order to restore such an application for restoration. the nagpur high court also in the case of brijmohan v. raghoba, a. i. r. (19) 1932 nag. 101 : (28 n. l. r. 83) already referred to held that an order restoring an application for restoration dismissed for default can only be passed under section 151, c. p. c. in order to do real and substantial justice.4. the better view seems to be that no application under order 9, rule 9, will lie for restoration of an application for restoration or setting aside an ex parte decree which has been dismissed for default and we respectfully agree with the high courts which have taken this view we are, further of opinion, that the court should have power in appropriate cases for good reasons to restore applications for restoration or setting aside ex parte decrees which have been dismissed for default under its inherent power given to it by section 161, c. p. c. this view, as we have already shown, has been taken by three of the high courts, namely, allahabad, calcutta and nagpur and we are in respectful agreement with them. we, therefore, hold that the court has power under section 161, c. p. c. but not under order 9, rule 9, c. p. c. to restore an application for restoration or setting aside an ex parts decree which has been dismissed for default. the munsif of jahazpur, therefore, did not act in excess of jurisdiction when he restored the application of 12-12.1948.5. it has been urged on behalf of the appellant that in this case, the munsif did not even call for an affidavit and that, in any ease, there was no good reason for restoring the application for setting aside the ex parte decree as the state was really not interested in this litigation and was merely a pro forma defendant. we would like to point out to the munsif concerned that he must always insist upon an affidavit in cases of this kind even though the application is made by the government pleader. that gentle. man does not stand in any better position than any other lawyer and an application made by him in a civil matter is to be supported by an affidavit in the game way as an application by any other lawyer on behalf of any other party. as this is, however, she first case of this kind where no affidavit has been taken from the government pleader, we will overlook it this ones.6. as to the other contention that there was no good reason for the munsif to restore the suit as the state was not really interested in this litigation, we feel that we are not in a position to express any opinion at this stage. the suit has not yet been restored and the application for setting aside the ex parte decree dated 12-12-1948 will, in due course, come up before the munsif. he should then consider whether the state has any real interest in this mattes: and whether it is worthwhile setting aside the ex parte decree, in case the state has no real interest in this litigation between private parties. we, therefore, dismiss the revision. considering the circumstances of the case, we made no order as to costs.