Gopali (Smt.) Vs. Laxmi Narain - 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 husband from his testimony as well as from the evidence of other witnesses viz.shiv kumar sharma, j.1. the appellant wife seeks to quash the order dated october 12, 1998 of family court no. 1, jaipur whereby the decree of divorce was granted in favour of the respondent husband on the ground of cruelty and desertion.2. contextual facts depict that the respondent husband in the petition under section 13 of the hindu marriage act averred that he entered into the marriage with gopali (appellant) on may 12, 1981 and from their wedlock a male child was born on february 10, 1982. the wife thereafter treated him cruelly and left his house in may, 1982 leaving behind the child. the application seeking restoration of conjugal rights was filed by the wife which stood disposed of in july, 1984 on the basis of compromise and she started residing with him. since she treated him cruelly and deserted him, he was entitled to the decree of divorce.3. the appellant wife submitted reply to the application denying the allegations levelled against her in the application. as many as three issues were framed on the basis of pleadings of the parties. thereafter both the parties examined their witnesses. on hearing final submissions learned court below held that since the wife treated the husband cruelly and deserted him, he was entitled to decree of divorce.4. we have heard the submissions advanced before us.5. having scanned the statements of laxmi narain, the respondent husband, we notice that all the alleged acts of cruelty were prior to 1986. after the parties lived as wife and husband continuously for a period of nine years and carried on their marital ties, it will be deemed that the husband condoned all those cruel acts allegedly committed by the wife prior to 1986.6. we also find that there is no trustworthy evidence on-record to establish that the wife had deserted the husband. after the wife and husband continuously resided together for nine years after the compromise entered between them in 1986, it is difficult to believe that the wife deserted the husband without any reasonable cause. the husband from his testimony as well as from the evidence of other witnesses viz. vasudev prasad (pw. 2), banwari lal (pw. 3) and om prakash (pw. 4) could not establish that there was animus-deserandi learned court below in our opinion did not consider the evidence properly and committed illegality in passing the decree of divorce.7. for these reasons, the appeal stands allowed and the impugned judgment and decree dated october 12, 1998 are set aside. there shall be no order as costs.